March 2011

Anticompetitive practices

The Spanish Competition Authority fines an association in the canned food industry for implementing a collective recommendation of prices for the sector (ANFACO, Conserveras)
Hogan Lovells (Madrid)
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Linklaters (Madrid)
On 31 March 2010, the Council of the Spanish Competition Commission (hereinafter “the Council”, “the NCC”) imposed a fine of € 100,000 on the Natonal Canned Food Association (“Asociación Nacional de Fabricantes de Conservas y Mariscos”) (“ANFACO”, “the Association”) for implementing a collective (...)

The European Court of Justice upholds fines imposed in steel beams cartel and alloy surcharge cartel cases (ThyssenKrupp)
Van Bael & Bellis
On 29 March 2011, the European Court of Justice (“ECJ”) dismissed an appeal brought by ArcelorMittal Luxembourg SA (formerly Arbed SA) against the judgment of the General Court confirming the Commission’s decision to impose a fine totalling € 10 million on it for its participation in a cartel on (...)

The European Court of Justice upholds fines imposed in steel beams cartel and alloy surcharge cartel cases (ArcelorMittal)
Van Bael & Bellis
On 29 March 2011, the European Court of Justice (“ECJ”) dismissed an appeal brought by ArcelorMittal Luxembourg SA (formerly Arbed SA) against the judgment of the General Court confirming the Commission’s decision to impose a fine totalling € 10 million on it for its participation in a cartel on (...)

The Serbian Competition Authority releases its 2010 Annual Report
University of Technology (Tallinn)
On 29 March 2011 the Committee for trade and tourism of the Serbian National Assembly has reviewed and accepted the 2010 Annual Report submitted by the Serbian Competition Authority (KZK) where it summarized its competition law enforcement and related activities carried out in 2010. The (...)

The French Court of Cassation rules that non-contestation of the objections by certain parties limits others’ defence to non-participation in the infringement (Manpower / Adecco / Adia / Randstad)
Vogel & Vogel
The Paris Court of Appeal had ruled against the world’s leading temporary employment agencies for a price cartel concerning their major clients. The Court of Cassation has delivered a most informative decision of rejection in respect of all the appeals – essentially procedural - against the (...)

The French Court of Cassation refers a question to the ECJ for a preliminary ruling on the required criteria for quantitative selective distribution (Auto 24/Jaguar Land Rover France)
Vogel & Vogel
The question of the criteria required for quantitative selective distribution continues to create intense debate in the case law in France. There are two opposing schools of opinion on the question both from legal commentators and in the case law: The first school argues that the European (...)

The Italian Competition Authority launches an inquiry into the motor fuel sector focusing on elements fostering competition in the market of "white pumps"
European Commission
Italy: The Italian Competition Authority launches Inquiry into the Motor Fuel Sector* On 23 March 2011, the Italian Competition Authority (ICA) launched an inquiry into the Italian motor fuel sector. The sector inquiry will investigate the general structure and organisation of the Italian (...)

The UK Competition Appeal Tribunal reduces “excessive” fines in construction bid rigging case (GF Tomlinson Group and others)
Van Bael & Bellis
On 11, 22 and 24 March 2011, the Competition Appeal Tribunal (“CAT”) handed down a series of judgments relating to appeals against the level of fines imposed by the Office of Fair Trading (“OFT”) in a decision of 21 September 2009 in the construction bid-rigging case. In its judgments, the CAT has (...)

The EU General Court partly annuls Commission’s State aid decision regarding an express transportation company hub in a German airport (DHL)
Van Bael & Bellis (Brussels)
In a judgment of 24 March 2011, the General Court was again called upon to rule on the validity of a decision adopted by the European Commission on 23 July 2008 with regard to an agreement concluded between DHL, FLH (the company operating Leipzig-Halle Airport) and MF (a company holding 94% of (...)

The Brussels Court of Appeal clarifies the scope of business secrets and anticompetitive exchanges of information in court actions between competitors (KPN and Beldiscom)
UGGC Avocats (Brussels)
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Buyle Legal (Brussels)
Introduction In a judgment dated 24 March 2011, the Brussels Court of Appeal ruled that the protection of business secrets prevents the exchange between competitors of detailed information on mobile phone subscriptions contained in an expert report produced in a Court action between KPN and (...)

The EU General Court overturns EC’s fine decision becasuse of insufficient evidence to sustain the penalty in a copper fitting cartel (Aalberts Industries)
On March 24, 2011, the European General Court overturned more than €100 million in fines imposed against Aalberts Industries NV and its subsid- iaries for its alleged involvement in a copper fittings cartel, finding the EC’s evidence insufficient to sustain the penalty. The EC had fined 30 (...)

The UK Competition Appeal Tribunal reduces “excessive” fines in construction bid rigging case (Durkan Holdings and others)
Van Bael & Bellis
On 11, 22 and 24 March 2011, the Competition Appeal Tribunal (“CAT”) handed down a series of judgments relating to appeals against the level of fines imposed by the Office of Fair Trading (“OFT”) in a decision of 21 September 2009 in the construction bid-rigging case. In its judgments, the CAT has (...)

The EU General Court rules on exclusivity provisions in the context of packaging waste management scheme (Altstoff Recycling Austria)
Van Bael & Bellis
On 22 March 2011, the General Court dismissed an appeal lodged in 2003 against a European Commission decision of that year which exempted under Article 101(3) TFEU (ex-Article 81 EC), subject to conditions, a packaging waste management scheme in Austria. This appeal was brought by Altstoff (...)

A US District Court dismisses class action alleging electricity overcharges (Simon / Keyspan)
Skadden, Arps, Slate, Meagher & Flom (Washington)
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Skadden, Arps, Slate, Meagher & Flom
KeySpan Corporation secured a sweeping victory on March 22, 2011, in the U.S. District Court for the Southern District of New York. Judge Shira Scheindlin’s broad decision granted with prejudice KeySpan’s motion to dismiss a putative consumer class action claiming approximately $360 million in (...)

The UK Competition Appeal Tribunal narrows the scope of follow-on claims (Emerson Electric / Carbone)
Cleary Gottlieb Steen & Hamilton (London)
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Cleary Gottlieb Steen & Hamilton (London)
This article has been nominated by the Business Steering Committee for the business category, general antitrust section of the 2012 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. On March 21, 2011, the U.K. Competition Appeal Tribunal (the “CAT”) struck (...)

The Japanese Federal Trade Commission issues a communication on the coordination of relief supplies’ delivery clarifying that such coordination does not raise antitrust concerns
McDermott Will & Emery (Brussels)
This article has been selected for the business category, anticompetitive practices section of the 2012 Antiturst Writing Awards. Click here to learn more about the Antitrust Writing Awards. The Japan Fair Trade Commission (JFTC) has issued two Communications on the extent to which industry (...)

The US DoJ announces that a company agreed to plead guilty and to pay a fine in a color display tube price-fixing cartel (Samsung)
Hirschler Fleischer (Richmond)
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IBM (New York)
On March 18, 2011, the DOJ announced that Samsung SDI (“Samsung”) agreed to plead guilty in a color display tube (“CDT”) price-fixing conspiracy and to pay a $32 million criminal fine. On the same day, the DOJ filed a one-count felony information in the US District Court for the Northern District (...)

A US District Court approves a settlement in a class action based on LCD price-fixing suit (In re LG Philips LCD)
Arent Fox
On March 11, 2011, Judge Richard Sullivan of the US District Court for the Southern District of New York gave final approval to a settlement between LG Display Co. Ltd. (“LG”) and a class of investors who alleged that LG’s stock price was artificially inflated due to LG’s undisclosed participation (...)

The German Bunsdekartellamt imposes € 38 M fine on three consumer goods manufacturers for illegal exchange of competition relevant information concerning the state of negotiations with major retailers and prices increases (Kraft Food, Unilever, Dr. August Oetker)
European Commission
Germany: Multi-million Fines imposed on Manufacturers of Consumer Goods* On 17 March 2011, the Bundeskartellamt (BKartA) imposed fines totalling € 38 000 000 on three manufacturers of consumer goods on account of the illegal exchange of competition relevant information infringing German and (...)

A Dutch High Court upholds the national competition authority’s decision lowering fines on shrimp wholesalers and fisheries for infringement of national and European cartel provisions
European Commission
The Netherlands: The Highest Dutch Court in Antitrust Cases upholds Decision on Shrimp Cartel* Dutch traders and Dutch, German and Danish producers’ organizations representing shrimp fishers must pay fines, totalling more than € 4 400 000, for infringing the European and national provisions (...)

The Italian Competition Authority closes an investigation into the national consortium for the recovery and recycling of cellulose-based packaging for alleged infringement of Art. 101 TFEU accepting the commitments proposed to fix antitrust concerns (COMIECO)
European Commission
Italy: The Italian Competition Authority (ICA) accepts Commitments and closes Investigation regarding Waste Paper Consortium COMIECO* On 16 March 2011, the Italian Competition Authority (ICA) closed proceedings based on an alleged violation of Article 101 TFEU against COMIECO, a consortium of (...)

The UK Competition Appeal Tribunal reduces “excessive” fines in construction bid rigging case (Kier and others)
Van Bael & Bellis
On 11, 22 and 24 March 2011, the Competition Appeal Tribunal (“CAT”) handed down a series of judgments relating to appeals against the level of fines imposed by the Office of Fair Trading (“OFT”) in a decision of 21 September 2009 in the construction bid-rigging case. In its judgments, the CAT has (...)

The UK Competition Appeal Tribunal cuts fines in the construction cover pricing appeal case (Kier Group and others)
University of East Anglia - CCP
Article published on Centre for Competition Policy blog. ‘Cover Pricing’: Object or Effect?* Last week, the UK’s Competition Appeals Tribunal (CAT) cut fines on six construction firms by 90%. The fines had been imposed by the Office of Fair Trading in 2009 for cover pricing. The CAT found the (...)

The UK Competition Appeal Tribunal holds its decision in the construction cover pricing appeal case (Kier Group and others)
Shoosmiths (Thames Valley)
I. Introduction The UK’s Competition Appeal Tribunal (CAT) gave judgment on 11 March 2011 in the first set of appeals by construction firms against fines totalling £129m imposed by the Office of Fair Trading (OFT) in 2009 following a lengthy investigation into cover pricing in tenders for (...)

The EU General Court reduces fine imposed in Spanish raw tobacco cartel appeal (World Wide Tobacco España)
Van Bael & Bellis
On 8 March 2011, the General Court (“GC”) handed down a judgment reducing the fine imposed by the European Commission on World Wide Tobacco España (“WWTE”) in the Spanish raw tobacco case. WWTE, an indirect subsidiary of the US-based Standard Commercial Corporation, was a Spanish tobacco processor, (...)

The Bulgarian Competition Authority adopts new leniency programme ensuring greater transparency on granting immunity or fines reduction
European Commission
Bulgaria: The Competition Authority adopts New Leniency Programme On 8 March 2011, the Commission on Protection of Competition (CPC) adopted a new Leniency Programme, which ensures greater transparency of the CPC’s policy for granting immunity or a reduction of fines for an undertaking having (...)

The US Supreme Court declines to review a Second Circuit ruling permitting a reverse-payment settlement between branded and a generic pharmaceutical manufacturers (Lousiana Wholesale Drug / Bayer)
Vinson & Elkins (Washington)
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Reese Gordon Marketos
A growing consensus among federal courts that so-called “reverse-payment” settlements rarely violate antitrust law has not tempered antitrust enforcement authorities’ opposition to such deals. In the pharmaceutical industry, brand-name drug manufacturers may file patent infringement lawsuits (...)

The Turkish Competition Board imposes heavy fines on banking cartel (Akbank, Denizbank, Finans Bank, Turkiye Garanti Bankasi)
Erdem & Erdem
The Competition Board (the “Board”) conducted an investigation and decided that Akbank T.A.S. (“Akbank”), Denizbank A.S. (“Denizbank”), Finans Bank A.S. (“Finans Bank”), Turkiye Garanti Bankasi A.S. (“Garanti Bankasi”), Turkiye Halk Bankasi A.S. (“Halk Bank”), Turkiye Is Bankasi A.S. (“Is Bankasi”), (...)

The Turkish Competition Authority concludes its investigation in banking industry regarding “gentlemen’s agreement” between 8 banks and imposed an administrative fine of 33 million Euros on 8 banks for anti-competitive agreements and concerted practices
Hewlett Packard (Istanbul)
I. Background Turkish Competition Authority (TCA) concluded its investigation in banking industry regarding “gentlemen’s agreement” between 8 banks. The investigation has been launched in August 2009, and hearing before the Competition Board took place on March 1, 2011. The short version of the (...)

The Latvian Competition Council decides that the participation of commercial banks in the MIF for cash withdrawals and card payments was illegal under Article 11 Part 1.1 of the Competition Act (Aizkraukles banka and Others)
Competition Council of Latvia
Prohibited Agreement in Banking Sector* On 3 March 2011 the Competition Council (CC) decided that 22 Latvian commercial banks have infringed Article 11 Part 1.1 of the Competition Law by participating in the Multilateral agreement on the interchange fee for cash withdrawals at ATM, cash (...)

The ECJ Advocate General Mazak recommends that prohibition on internet sales be per se infringement (Pierre Fabre Dermo-Cosmétique)
Jones Day (Brussels)
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Jones Day (Brussels)
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Jones Day (Dusseldorf)
On March 3, 2011, Advocate General (AG) Mazák delivered an opinion to the European Court of Justice (ECJ) in Pierre Fabre Dermo-Cosmétique SAS (PFDC). PFDC, a French manufacturer of cosmetics and personal care products, prohibited its retailers from selling via the Internet. AG Mazák advised the (...)

The EU General Court confirms that when a wholly owned subsidiary is sold to a new owner, that subsidiary and the previous owner remain jointly and severally liable for any competition law infringement that the subsidiary committed before the sale (Areva, Alstom)
Herbert Smith Freehills (London)
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White & Case (Brussels)
In a judgment delivered on 3 March 2011 in Cases T-117/07 Areva v European Commission and T-121/07 Alstom v European Commission, the General Court of the European Union (the ‘Court’) the Court confirmed the general rule that when a wholly-owned subsidiary that has infringed competition law is (...)

The French Supreme Court clarifies the appreciable effect on trade concept contained in Art. 101 and 102 TFUE (Jet Fuel Cartel)
University Paris Dauphine
I. Introduction 1. In a landmark judgment of 1 March 2011, the French Supreme Court in Commercial, Financial and Economic matters (Cour de cassation, Chambre commerciale, financière et économique) provided guidance on establishing a local collusive agreement’s appreciable effect on trade between (...)

The UK Competition Appeal Tribunal cuts fines imposed in the construction industry and overturns aspects of the OFT’s findings on liability
Herbert Smith Freehills (London)
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Herbert Smith Freehills (London)
Summary In a series of nine judgments dated between 11 March and 27 April 2011 (the "CAT Judgments"), the UK’s Competition Appeal Tribunal ("CAT" or the "Tribunal") dramatically reduced the fines imposed by the Office of Fair Trading (the "OFT") on 25 companies (the "Appellants") in the (...)

Unilateral Practices

The Tokyo District Court grants an injunction under article 24 of the Japanese Antimonopoly Act for the first time against anti-competitive practices (Dry ice)
Nishimura & Asahi (Tokyo)
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Nishimura & Asahi
On March 30, 2011, the Tokyo District Court granted a temporary injunction under Article 24 of the Act on Prohibition of Private Monopolization and Maintenance of Fair Trade (Act No. 54 of April 14, 1947) (the “Japanese Antimonopoly Act”) against a manufacturer of dry ice for anti-competitive (...)

The German Federal Court of Justice decides on the obligation of car manufacturers to contract with authorised repairers of competitors (MAN-Vertragswerkstatt)
Gleiss Lutz (Munich)
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Milbank, Tweed, Hadley & McCloy (Munich)
On 30 March 2010, the German Federal Court of Justice overruled a judgment of the Higher Regional Court of Munich and restored the judgment of the Regional Court of Munich in first instance. The question at stake was whether MAN had an obligation to contract with authorised repairers of Daimler (...)

The German Federal Court of Justice dismisses action of repair shop to be admitted to the authorised repair network of a commercial vehicle manufacturer based on alleged abuse of dominance (MAN)
Van Bael & Bellis
In a recent judgment delivered on 30 March 2011, the German Federal Court of Justice dismissed the action brought by a vehicle repairer to be admitted to the authorised repair network of MAN, a commercial vehicle manufacturer, based on the claim that MAN was abusing its dominant position as (...)

The Spanish NCC closes, subject to commitments, proceeding against the performer’s collective management organization for unfair and discriminatory tariffs on TV broadcasting of audiovisual works (AISGE)
Callol, Coca & Asociados
The commitments finally presented by AISGE redesign the calculation of the tariffs to reflect effective use of its repertoire and have been considered adequate to resolve the anti-competitive effects of the conduct of AISGE; AISGE was under investigation in relation to unfair and discriminatory (...)

A US District Court dismisses claims on monopolization, unfair competition and fraud, since the plaintiff did not articulated a proper definition of the relevant market (Digital Sun / The Toro Company)
Sheppard Mullin (Los Angeles)
Federal Court Finds Allegations of “Bad Faith” in Sprinkler License Agreements to be “Vox Clamantis in Deserto”* On March 22, 2011, the United States District Court for the Northern District of California entered an order granting defendants The Toro Company’s ("Toro") motion to dismiss plaintiff (...)

A US district court rejects a proposed settlement in the digitized book search sector (Google Books Settlement)
University of Chicago - Law School
Moving Forward in Google Book Search* On Tuesday, after more than a year of silence, Judge Denny Chin rejected the proposed settlement in the Google book search case. The innovative settlement asked more than Rule 23 could deliver. In his words, the settlement “would simply go too far.” Others (...)

The Bulgarian Competition Authority sanctions an electricity distributor for refusal to supply despite the existing commitments decision in a similar case (E.ON Bulgaria Sales)
University of Technology (Tallinn)
On 22 March 2011 the Bulgarian Competition Authority (CPC) prosecuted the dominant electricity distributor E.ON Bulgaria Sales for the refusal to supply due to the existing debts accumulated by the previous owner of the facility supplied with electric energy. The CPC‘s investigation into the (...)

A US district court rejects settlement between online search provider and copyright owners in the digitized books sector (Google Books Settlement)
Garrigues (Brussels)
Google Books Settlement Rejected* Some of you will recall that roughly a year ago I wrote a post on the Google Books settlement (“Google Books Settlement: It’s the search market stupid!”) in which I argued that the only competitive problem, if any, posed by the amended settlement related to the (...)

The Danish Supreme Court upholds judgment by the Eastern High Court finding that a broadcaster has abused its dominant position by granting rebates (TV2)
Danish Competition and Consumer Authority (Copenhagen)
On 18 March 2011, the Danish Supreme Court upheld a judgment by the Eastern High Courtfinding that the Danish broadcaster TV2 had abused its dominant position by granting loyalty enhancing rebates in connection with the sale of television advertising space, contrary to Section 11 of the Danish (...)

The Danish Supreme Court confirms that a TV broadcaster has abused its dominant position in the market for national television commercials in the form of illegal loyalty-inducing discounts (TV 2/Danmark)
Lexxion Publisher
On 18 March 2011 the Danish Supreme Court delivered a final judgment in the case concerning TV 2/Danmark’s use of loyalty-inducing discounts in the Danish market for TV advertising. The Supreme Court held in the judgment that TV 2/Danmark’s annual discounts are likely to have a material (...)

The Spanish Competition Commission fines a company and its subsidiary for abuse of dominant position in the market of resale of audiovisual retransmission of Spanish football clubs (Mediapro, Gol Tv)
Callol, Coca & Asociados
Mediapro holds the broadcasting rights for the Spanish first division league (Liga) and King’s Cup (Copa de S.M. el Rey) for 2009/2010 and subsequent seasons. Therefore Mediapro has a dominant position in the market for the resale of broadcasting rights. Furthermore, Mediapro is (...)

The Spanish Competition Authority fines the holder of football TV rights for abusing its dominant position in the resale of these rights and in the pay TV market (Mediapro)
CMS Albinana y Suarez de Lezo (Madrid)
Mediaproducción S.L. (Mediapro) is currently the holder of the audiovisual rights for the regular league and Copa del Rey (King’s Cup) football competitions (the Competitions) for all teams in the Spanish first and second divisions for the 2009/2010 and subsequent seasons. In May 2009 the CNC (...)

The Bulgarian Supreme Administrative Court dismisses complainant’ standing to challenge commitments in antitrust cases (Zlaten Lev Capital)
Kinstellar (Sofia)
The Bulgarian Supreme Administrative Court (the “SAC”) rejected complainants’ locus standi to challenge the commitments accepted by the Bulgarian Commission for the Protection of Competition (the “CPC”) in antitrust cases. Complainants were considered to lack any cause for appeal because commitments (...)

A US Court of Appeals holds that the lower court erred in defining the relevant geographic market in an antitrust monopoly claim over the para-aramid fiber industry under section 2 of the Sherman Act (E.I. du Pont de Nemours, Kolon)
Wolters Kluwer (Riverwoods)
Monopoly Claims Against DuPont Revived by Fourth Circuit* Claims that E.I. du Pont de Nemours and Company attempted to wield, and did wield, monopoly power over the U.S. para-aramid fiber market in violation of Sec. 2 of the Sherman Act should not have been dismissed, the U.S. Court of Appeals (...)

The Irish High Court holds the Health Service Executive to be an undertaking under the traditional Court of Justice definition (Medicall Ambulance)
Arthur Cox (Dublin)
This case concerns an allegation of a breach of dominant position contrary to the Irish Competition Act made by a private ambulance operator against the Health Service Executive, which is a public body that also operates ambulances. This judgment dealt with the preliminary issue as to whether (...)

Mergers

The Turkish Competition Authority unconditionally clears an acquisition in the film production, theatrical distribution and home entertainment distribution markets (Fida Film/Tiglon)
University of Sussex
This study analyses the decision of the Turkish Competition Authority in which it has cleared the acquisition of Tiglon, active in the film production market and the third largest firm in the theatrical distribution market, by Fida Film, dominant on the market for screen advertising in cinemas, (...)

The EU Commission clears in phase I a merger in the silicon sector examining possible coordination by the Chinese State of market behaviour of Chinese State-owned companies (China National Bluestar/Elkem)
Skadden, Arps, Slate, Meagher & Flom (Brussels)
How to deal with Chinese State-owned Enterprises under the EUMR?* On 13 September, the Commission published its decision of 31 March 2011 in China National Bluestar/Elkem. After DSM/Sinochem/JV (decision of 10 May but published in June), this was the second published decision which dealt in (...)

The Spanish Competition Commission clears in second phase merger in the payment processing sector imposing commitments to the two merging companies (REDSYS / REDY)
Callol, Coca & Asociados
The merger of Redsys Servicios de Procesamiento (RESDYS) and Redes y Procesos (REDY), two payment processing companies was notified to the NCC on 16 August 2010. The NCC decided on October 2010 to open phase 2 proceedings because it took the view that the operation could hinder the (...)

The US DoJ requires minor conduct remedies before approving a vertical merger affecting the market for petroleum needle coke (GrafTech / Seadrift)
McDermott Will & Emery (Washington)
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McDermott Will & Emery
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McDermott Will & Emery (Washington)
McDermott Will & Emery lawyers succeeded in obtaining the necessary antitrust approval for clients Seadrift Coke L.P. (Seadrift), the world’s second largest petroleum-based needle coke producer, and C/G Electrodes LLC (C/G), a U.S.-based graphite electrode producer, which have been acquired (...)

The Swedish Competition Authority approves after an in-depth investigation acquisition by a wholesaler of 100 % of the shares of its retailer and service provider (Assa Sverige/Swesafe)
Vinge (Stockholm)
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Cosmetics Europe
Introduction On 23 March 2011, the Swedish Competition Authority (“SCA”) approved after an in-depth investigation ASSA Sverige AB’s (“ASSA”) acquisition of 100 % of the shares in the retailer and service provider Swesafe AB (“Swesafe”). During its investigation, the SCA considered whether the (...)

The UK Office of Fair Trading refers an anticipated acquisition of travel services providers to the Competition Commission (Thomas Cook / Co-operative Group / Midlands Co-operative Society)
CRA International (London)
I. The transaction The transaction involves Thomas Cook acquiring control of the retail travel business of the Co-operative Group (“CGL”) and Midlands Co-operative Society (“Midlands”). Thomas Cook is a vertically integrated tour operator offering package holidays, flights, accommodation and other (...)

The Italian Competition Authority conditionally clears a banking merger leading to a collective dominant position by imposing a set of structural and behavioural remedies (Intesa San Paolo-Banca Monte Parma)
Desogus Law Office (Cagliari)
The Italian Competition Authority (ICA) has conditionally authorized the Intesa San Paolo (ISP) acquisition of Banca Monte Parma (BMPR)by a second phase investigation decision . The ICA imposed a set of remedies to fix the competition concerns arising from a dominant position between ISP and (...)

The German Federal Cartel Office prohibits online video platform joint venture (RTL and Pro7sat1)
Jones Day (Frankfurt)
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Jones Day (Dusseldorf)
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Jones Day (Frankfurt)
On March 17, 2011, the German Federal Cartel Office (Bundeskartellamt) rejected plans by German broadcasting groups RTL and Pro7Sat1 to launch a joint venture for the creation and operation of an online video platform. This decision illustrates how in Europe, particularly in Germany, antitrust (...)

The US Federal Energy Regulatory Commission (FERC) issues a notice of inquiry on potential changes to its merger review standards
O’Melveny & Myers (Washington)
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Bracewell & Giuliani (New York)
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North American Electric Reliability Corporation
On March 17, 2011, the Federal Energy Regulatory Commission (“FERC”) issued a Notice of Inquiry (“NOI”), [1] seeking comment on whether it should revise its approach to examining horizontal market power under Sections 203 and 205 of the Federal Power Act (“FPA”). FERC analyzes horizontal market power (...)

The German Federal Cartel Office blocks a joint‐venture for the creation of an online video on demand platform by the two leading German TV broadcasters (RTL / Pro7Sat1)
NOCON
I. Transaction RTL and Pro7Sat1 planned to set up an online video on demand (VOD) platform which allows users toaccess and watch professional video content. The concept of the platform was to provide content that has already been transmitted on TV and can be accessed free of cost for seven (...)

The Serbian Supreme Court of Cassation holds that the rules on determining the abuse of dominant position are inapplicable in a case of conditional merger clearance (Delta Agrar)
University of Technology (Tallinn)
On 11 March 2011 the Supreme Cassation Court of Serbia (VKS) quashed the judgment of the Administrative Court, which annulled the conditional merger clearance delivered by the Serbian Competition Authority (KZK) in the Delta Agrar/Florida Bel case. The VKS held inter alia that the rules on (...)

The Finnish Parliament approves the new Competition Act introducing amendments to both merger and antitrust rules
European Commission
Finland: New Competition Act approved by the Parliament* On 11 March 2011, the Finnish Parliament approved the new Finnish Competition Act. The Act will enter into force in autumn 2011. The main amendments are the following. One of the major changes brought by the new law relates to the (...)

The European Commission examines whether acquisitions of minority shareholdings should be subject to EU merger control
Van Bael & Bellis (Brussels)
In a recent speech, Competition Commissioner Joaquin Almunia said that the European Commission is examining whether acquisitions of minority shareholdings, falling short of an acquisition of control, should be subject to EU merger control. Under the current Merger Regulation, acquisitions of a (...)

The Chinese State Council publishes a notice detailing its national security review procedure for the acquisition by foreing investors of domestic companies
Jones Day (Beijing)
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Gibson Dunn (Hong Kong)
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Jones Day (Beijing)
The State Council of the People’s Republic of China has published a notice detailing its national security review («NSR») procedure for the acquisition by foreign investors of domestic Chinese companies («NSR Notice»). The NSR Notice, which implements Article 31 of the PRC Anti-Monopoly Law, will be (...)

The Spanish Parliament broadens merger filing exemption and enhances government coordination
Jones Day (Madrid)
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Jones Day (Madrid)
On March 5, 2011, the Spanish Parliament amended the Spanish Competition Act 15/2007, affecting merger filing requirements and the changing the interaction between the National Competition Commission (NCC) and the national regulatory authorities (NRAs), which govern businesses in energy, (...)

The Chinese Ministry of Commerce issues national security review implementing regulations
China Competition Bulletin
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China Competition Bulletin
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Institute of American Studies
The MOFCOM published the Interim Measures on Relevant Matters Concerning the Implementation of Security Review of Mergers and Acquisitions of Domestic Enterprises by Foreign Investors (《商务部实施外国投资者并购境内企业安全审查 制度有关事项的暂行规定》) (the Interim Measures) on 4 March 2011. The Interim Measures were promulgated to (...)

The Turkish Competition Authority examines the privatisation of three electricity distribution companies (AYEDAS-Akdeniz Elektrik-Toroslar Elektrik)
King’s College (London)
The Turkish Competition Authority (TCA) reviewed the privatisation of three electricity distribution companies (namely, AYEDAS, Akdeniz Elektrik and Toroslar Elektrik) where 100% of the shares in each company were offered in a block sale. Pursuant to the official privatisation schedule, (...)

The UK OFT for the first time uses its ’fast track’ merger referral procedure (Thomas Cook and Midlands)
Morgan Lewis (London)
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Cadwalader Wickersham & Taft (Brussels)
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Jones Day (London)
On 2 March 2011, the UK’s Office of Fair Trading (OFT) made a ’fast-track’ reference to the Competition Commission (CC) of the travel agency joint venture proposed by Thomas Cook, Co-operative Group, and Midlands Co-operative Society. This is the first time the OFT has used this procedure since (...)

The Japan Fair Trade Commission proposes revised merger regulation and guidelines
Jones Day (Tokyo)
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Jones Day (Tokyo)
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Jones Day (Tokyo)
The Japan Fair Trade Commission (JFTC) has proposed revised merger regulation and guidelines, to further improve transparency and predictability of merger review procedure under the Antimonopoly Act and make Japanese merger regulation more consistent with international standards. The main (...)

State Aid

The European Commission authorises an emergency recapitalisation of up to €250 M for a Slovenian bank (Nova Ljubljanska Banka)
European Commission - DG COMP (Brussels)
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European Commission - DG COMP (Brussels)
State aid: main developments between 1 January and 30 April 2011* On 7 March, the Commission authorised an emergency recapitalisation of up to €250 million for the Slovenian bank Nova Ljubljanska Banka (NLB). NLB passed the stress tests conducted in mid-2010 by the European Banking Authority (...)

The European Commission approves several State aid measures in favour of Austrian bank (Kommunalkredit Austria)
European Commission - DG COMP (Brussels)
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European Commission - DG COMP (Brussels)
State aid: main developments between 1 January and 30 April 2011* On 31 March, the Commission approved several measures in favour of Kommunalkredit Austria AG. Before the crisis, Kommunalkredit was the seventh largest Austrian bank with a balance sheet of €37 billion. Its business consisted of (...)

The European Commission authorises a grant of €19.2 M to an Italian sports car producer for a project to train its workforce at its two production sites (De Tomaso)
European Commission - DG COMP (Brussels)
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European Commission - DG COMP (Brussels)
State aid: main developments between 1 January and 30 April 2011* By its decision of 23 March, the Commission authorised a grant of €19.2 million to the Italian sports car producer De Tomaso SpA for a project to train its workforce at its two production sites in Grugliasco (Piedmont) and (...)

The European Commission authorises public assistance to UK postal services operator ruling that the aid was compatible with EU rules because it does not overcompensate the net costs of the important public service tasks entrusted and therefore did not give any unfair competitive advantage (UK Post Office Limited)
European Commission - DG TRADE
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European Commission - DG COMP (Brussels)
Services of general economic interest: UK Post Office Ltd* On 23 March 2011 the European Commission authorised public assistance to the UK Post Office Ltd (POL), for a period of one year starting on 1 April 2011, for the funding of its network of post offices and the continuation of existing (...)

The European Commission adopts a communication on the revision of EU State aid rules on services of general economic interest (SGEI) and a report on their application
European Commission - DG COMP (Brussels)
,
European Commission - DG COMP (Brussels)
State aid: main developments between 1 January and 30 April 2011* On 23 March, the Commission also adopted a Communication on the revision of European Union State aid rules on Services of General Economic Interest (SGEI) and a report on their application. These rules, also known as the 2005 (...)

The European Commission authorises £180 M of public assistance to UK postal services operator for the funding of its network of post offices during one year (Post Office Limited)
European Commission - DG COMP (Brussels)
,
European Commission - DG COMP (Brussels)
State aid: main developments between 1 January and 30 April 2011* On 23 March, the Commission authorised £180 million (€212 million) of public assistance to the UK Post Office Limited (POL) for the funding of its network of post offices during one year starting 1 April 2011. The Commission also (...)

The European Commission authorises Denmark’s plans to establish a new public service radio to increase competition on the country’s radio market for public service programming by supporting the creation of a new channel (channel FM4)
European Commission - DG COMP (Brussels)
,
European Commission - DG COMP (Brussels)
State aid: main developments between 1 January and 30 April 2011* On 23 March, the Commission authorised Denmark’s plans to establish a new public service radio, channel FM4, to increase competition on the country’s radio market for public service programming by supporting the creation of a new (...)

The European Commission decides that investment aid for two German interlinked plants constitutes State aid that was compatible with the internal market under Article 107(3) TFEU (Glunz and OSB Deutschland)
European Commission - DG COMP (Brussels)
,
European Commission - DG COMP (Brussels)
State aid: main developments between 1 January and 30 April 2011* On 23 March, the Commission decided that investment aid for Glunz and OSB Deutschland, two interlinked plants, constituted state aid that was compatible with the internal market under Article 107(3) TFEU. The measure was (...)

The Slovak Republic parliament adopts an amendment enabling that an EU Commission’s decision on the recovery of state aid be directly enforceable against the beneficiary
Kinstellar (Prague)
,
University of Oxford
An amendment to Act No. 231/1999 Coll. on State Aid, as amended (the “Act on State Aid”) and to Act No. 233/1995 Coll. the Code of Enforcement of Judicial Decisions, as amended (the “Enforcement Code”), was passed on 23 March 2011, enabling that a Commission’s decision on the recovery of state aid (...)

The European Commission decides that a so-called reorganisation clause under German corporate tax law amounts to State aid ("Sanierungsklausel")
European Commission - DG COMP (Brussels)
,
European Commission - DG COMP (Brussels)
State aid: main developments between 1 January and 30 April 2011* The Commission decided on 15 March that a so-called reorganisation clause, or «Sanierungsklausel«, under German corporate tax law amounts to State aid. The provision enables an ailing company to offset losses in a given year (...)

The European Commission authorises a Danish public funding for a pilot programme incentivising the purchase of electric cars
European Commission - DG COMP (Brussels)
,
European Commission - DG COMP (Brussels)
State aid: main developments between 1 January and 30 April 2011* On 8 March, the Commission authorised DKK15 million (approximately Eur. 2 million) of public funding for a pilot programme incentivising the purchase of electric cars until 31 December 2012. The scheme supports projects designed (...)

The European Commission rejects a specific provision of the revised Austrian "Green Electricity Act" that would have provided energy-intensive businesses with a partial exemption from buying green electricity (Ökostromgesetznovelle 2008)
European Commission - DG COMP (Brussels)
,
European Commission - DG COMP (Brussels)
State aid: main developments between 1 January and 30 April 2011* After an in-depth investigation opened in 2009, on 8 March the Commission rejected a specific provision of the revised Green Electricity Act of Austria (Ökostromgesetznovelle 2008) that would have provided energy-intensive (...)

The European Commission finds that a State guarantee put in place by France to cover the exchange rate risk for aeronautic suppliers does not constitute State aid (Aero 2008)
European Commission - DG COMP (Brussels)
,
European Commission - DG COMP (Brussels)
State aid: main developments between 1 January and 30 April 2011* On 8 March, the Commission closed a formal investigation procedure opened in 2009 and found that a state guarantee put in place by France to cover the exchange rate risk for aeronautic suppliers (Aero 2008) does not constitute (...)

The European Commission orders Spain to abolish a provision in its corporate tax law allowing Spanish companies to amortise ‘financial goodwill’ deriving from acquisitions of shareholdings in companies in third countries
European Commission - DG COMP (Brussels)
,
European Commission - DG COMP (Brussels)
State aid: main developments between 1 January and 30 April 2011* On 3 March, the Commission requested Spain to abolish a 2002 provision in its corporate tax law that allows Spanish companies to amortise ‘financial goodwill’ deriving from acquisitions of shareholdings in companies in third (...)

Procedures

The Macedonian Competition Authority releases its 2010 annual report
University of Technology (Tallinn)
On 31 March 2011 the Macedonian Competition Authority (KZK) released its annual report summarizing competition law enforcement activities carried out in 2010. It should be noted that until 13 November 2010 the KZK was acting pursuant to the old competition law, which provided for two distinct (...)

The US FTC imposes a civil penalty on a toy retailer for violating a 13-year-old antitrust order governing its dealings with suppliers (Toys “R” Us)
WilmerHale (Washington)
,
WilmerHale (Washington)
,
WilmerHale (Washington)
The Federal Trade Commission (FTC) imposed on Toys "R" Us a $1.3 million civil penalty for violating a 13-year-old antitrust order. This fine highlights that FTC orders can stay in force for 20 years—and potentially indefinitely if they are obtained in district court —and that the FTC actively (...)

The Chinese Supreme People’s Court publishes revised rules on civil causes of action
Jones Day (Beijing)
,
Gibson Dunn (Hong Kong)
,
Jones Day (Beijing)
The Chinese Supreme People’s Court ("SPC") has made substantial progress in recent months writing rules for private enforcement of China’s 2008 Anti-Monopoly Law ("AML"). On March 20, 2011, the SPC published revised Rules on Civil Causes of Action, which define which courts are competent to hear (...)

A German District Court dismisses a company attempt to have its former subsidiary ordered to pay a fine imposed by the European Commission (Evonik Degussa, Stahl-Metallurgie)
Van Bael & Bellis (Brussels)
On 16 March 2011, the German District Court of Munich handed down a judgment in which it rejected a claim by Evonik Degussa GmbH (“Evonik”) that its former subsidiary SKW Stahl-Metallurgie GmbH (“SKW”) should be ordered to pay the € 1.04 million fine which the European Commission had imposed on both (...)

The UK Government consults on plans to merge OFT and Competition Commission
Van Bael & Bellis (Brussels)
On 16 March 2011, the UK Government launched a consultation on options for reforming the UK competition regime and unveiled its plans to create a single Competition and Markets Authority (“CMA”) by merging the competition functions of the UK’s existing two competition authorities, namely, the (...)

The UK Government consults on wide-ranging reforms to the competition regime, including a proposal to merge the Office of Fair Trading and the Competition Commission into a single competition and markets authority
Wiggin (London)
I. Background On 14 October 2010, the Department for Business, Innovation and Skills (“BIS”) announced the intention to bring together the Competition Commission (“CC”) and the competition functions of the Office of Fair Trading (“OFT”) to form a single Competition and Markets Authority (“CMA”). BIS (...)

The Moldovan Competition Authority releases its 2010 annual report
University of Technology (Tallinn)
On 15 March 2011 the Moldovan Competition Authority (ANPC) released its 2010 Annual Report, where it summarized its enforcement activities carried out in 2010 and outlined priorities for 2011. In 2010 the ANPC initiated 60 investigations (20 concerning abuse of dominance and 4 concerning (...)

The Dutch Competition Authority issues its conclusions on the national textbook market underlining that competition between distributors and publishers of secondary-education textbooks is limited
European Commission
The Netherlands: Textbook Scan on Dutch Market* Competition between distributors and publishers of secondary-education textbooks is limited, thereby preventing the Dutch textbook market from functioning optimally. This has been the conclusion of the 2011 Textbook Scan carried out by the (...)

A US Court of Appeals holds that a class action waiver provision contained in commercial contracts between merchants and charge card issuer/servicer provider was unenforceable (American Express)
Wolters Kluwer (Riverwoods)
Enforceability of Class-Arbitration Bans Still an Open Question* Including an arbitration agreement in a commercial or consumer contract that requires your customer to pursue only individual claims in the arbitral forum will not necessarily protect you from class-wide arbitration. You will (...)

The US FTC publishes a report on patent system recommending reforms on notice and remedies to benefit both consumers and competition
Gibson Dunn (New York)
U.S. Federal Trade Commission Recommends Changes to U.S. Patent System* The U.S. Federal Trade Commission (“FTC”) has issued a report analyzing the U.S. patent system from a competition policy perspective. The FTC recognizes that, like the competitive process fostered by competition law, the (...)

The EU General Court suspends obligation to provide bank guarantee for a fine in calcium carbide and magnesium reagents cartel (Garantovaná)
Van Bael & Bellis (Brussels)
On 2 March 2011, the President of the General Court issued an order suspending an obligation on the Slovak company 1. garantovaná a.s. (“Garantovaná”) to provide the European Commission with a bank guarantee in order to avoid the immediate recovery of a fine of € 19.6 million imposed by the (...)

The UK Office of Fair Trading announces the trial of a new adjudicator role to resolve disputes on procedural issues to speed up investigations under the Competition Act 1998
European Commission
United Kingdom: Trialling of Procedural Adjudicator at the Office of Fair Trading (OFT)* Alongside its procedural guidance, the OFT also announced the trial of a new adjudicator role to resolve disputes on procedural issues, as part of a drive to speed up investigations under the Competition (...)

The Spanish Competition Commission fines a manufacturer of office supplies for obstructing an inspection carried out at its head office (Grafoplas)
European Commission - DG COMP (Brussels)
,
Private Advising Group P.A.
On March 1, 2011, the Spanish Competition Commission (Comisión Nacional de la Competencia, the “CNC”) fined GRAFOPLAS DEL NOROESTE, S.A. (“GRAFOPLAS”) €161,600 for obstructing an inspection carried out at its head office. Background GRAFOPLAS is a prominent Spanish manufacturer of office supplies (...)

The Finnish Competition Authority investigates on the district heating sector to understand whether prices applied by involved companies are abusive
European Commission
Finland: Study concerning the District Heating Sector* On 1 March 2011, the Finnish Competition Authority (FCA) finished the first stage of its investigations concerning the district heating sector. The aim of the study is to form an opinion of whether the pricing of the companies involved (...)

The Hungarian Competition Authority renews its consumer inquiries’ service to deal more efficiently with competition proceedings
European Commission
Hungary: Renewed Consumer Inquiries’ Service at the Competition Authority (GVH)* From 1 March 2011, the Gazdasági Versenyhivatal (GVH - Hungarian Competition Authority) has renewed its Consumer Inquiries Service. Since thousands of consumer inquiries have been submitted to the GVH in the (...)

Regulatory

The French Competition Authority issues its first opinion on the telecom sector, taking into account the European Commission’s recommendation concerning competitive aspects of wholesale broadband internet services
European Commission
France: The Autorité de la concurrence issues its first Opinion on the Telecom Sector, taking into account the recently published European Commission’s NGA Recommendation* On 8 March 2011, following a request by the French telecom sector regulator (ARCEP), the Autorité de la concurrence (the (...)

The U.S. FTC issues report on the evolving intellectual property marketplace
Jones Day (Washington)
,
Jones Day (Cleveland)
This week the Federal Trade Commission issued its long-anticipated report, "The Evolving IP Marketplace: Aligning Patent Notice and Remedies With Competition." The report is seen by the FTC as continuing the "policy engagement with the patent system" that it launched in its controversial (...)

Public sector

A Danish court imposes fines on two environmental laboratories and their directors for bid rigging (Environmental Laboratory and Milana)
Danish Competition and Consumer Authority (Copenhagen)
On 25 March 2011, a Danish District Court convicted two environmental laboratories for bid rigging and imposed fines of DKK 500,000 (approx. EUR 67,000) on each of the two companies and fines of DKK 25,000 (approx. EUR 3,400) on each of the two directors. I. Background Miljølaboratoriet I/S (...)

The Italian Competition Authority issues an opinion on the potential anticompetitive effect of a draft bill concerning the purchase of biological medicines by public procurement (DDL n. 1875/2011)
European Commission
Italy: The Competition Authority’s (ICA’s) Opinion on the Public Procurement Discipline for Biopharmaceutical Products* On 16 March 2011, the ICA addressed to the Italian government an opinion on the potential anticompetitive effect of a draft bill concerning the purchase of biological medicines (...)

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