March 2012

Anticompetitive practices

The US District Court of Detroit dismisses antitrust claims against practice of requiring hospitals to enter into "MFN-Plus" contracts (City of Pontiac / Blue Cross Blue Shield)
Sheppard Mullin (Los Angeles)
District Court Dismisses Follow-On Suit Challenging Blue Cross’s “MFN-Plus’ Contracts Under Both Per Se and Rule of Reason Standards* The District Court for the Eastern District of Michigan recently dismissed antitrust claims brought by the City of Pontiac against Blue Cross Blue Shield of (...)

The Croatian High Administrative Court upholds the NCA’s decision against an automobile supplier for including anticompetitive provisions its auto repair services agreements that could not be exempted under the national equivalent of the EC Regulation 1400/2002 (Kia Motors)
University of Technology (Tallinn)
On 29 March 2012 the Croatian High Administrative Court (VUS) upheld the infringement decision issued by the Croatian Competition Authority (AZTN) against the exclusive supplier of KIA automobiles in Croatia Kia Motors Adria Group d.o.o. (KMAG) for obliging the authorized auto repairers to (...)

The EU Commission imposes € 169 M on 14 international groups of freight forwarders for operating four price fixing cartels (Freight forwarders cartel)
Van Bael & Bellis
On 28 March 2012, the European Commission announced that it had fined 14 international groups of companies a total of € 169 million for participating in four distinct cartels. According to the press release published by the Commission, the aim of the participants in the cartel was to fix (...)

The UK OFT consults on the introduction of a new structure concerning the investigation decisions under the Competition Act 1998
University of East Anglia - CCP
Article published on Centre for Competition Policy blog. OFT’s Proposed Reforms Fall Short of Ensuring Independence in Antitrust Decision Making* The OFT is currently consulting on its proposed new investigation procedures in competition cases. Much of what is proposed is very good – but the (...)

A New York Court of Appeals holds that state law cannot reach a purely foreign antitrust conspiracy (Global Reinsurance v. Equitas)
White & Case (New York)
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White & Case (New York)
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White & Case (New York)
In a decision that may reverberate beyond the antitrust context, New York’s highest court - the Court of Appeals - held that the state’s antitrust statute lacks the extraterritorial scope to reach a purely foreign alleged antitrust conspiracy. The decision could have broad implications for (...)

The UK Government presents its plans for minimum alcohol pricing giving rise to claims of resale price maintenance illegality
Lancaster University
Minimum Alcohol Pricing and EU Law* The announcement regarding minimum alcohol pricing on Friday 22nd March was unusual in a number of respects. The UK Govt does not usually make significant announcements on Friday, as most MPs are away from Westminster on constituency business, but it also (...)

The Netherlands Competition Authority revises fines on flour producers (Meneba, Grain Millers, Werhahn)
European Commission
The Netherlands: The Netherlands Competition Authority (NMa) revises Fines on Flour Producers* On 22 December 2010, the NMa imposed fines totalling € 81 600 000 on flour producers in the Netherlands, Belgium and Germany for cartel activities. Fifteen firms in different group compositions were (...)

The Dutch Trade and Industry Appeal Tribunal annuls a fining decision, requesting the Competition Authority to reset the fines at a much lower level (Gardening companies)
Simmons & Simmons (Amsterdam)
Late in 2005 the Dutch Competition Authority (NMa) imposed fines totalling €1.1m on eight gardening companies for engaging in illegal bid rigging in the southern Dutch city of Maastricht. In the beginning of 2004, the companies had agreed between themselves which companies would win five one (...)

The U.S. FTC brings an administrative action alleging price fixing and other anticompetitive behavior involving three of the largest suppliers of ductile iron pipe fittings (Star Pipe Products, Sigma Corporation, McWane)
Jones Day (Washington)
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Jones Day (Chicago)
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Jones Day (Chicago)
The FTC has brought an FTC administrative action alleging price fixing and other anticompetitive behavior involving three of the largest U.S. suppliers of ductile iron pipe fittings (DIPF), which are used in municipal water systems. It now has published for public comment a proposed consent (...)

The French Competition Authority fines three leading companies in dog and cat food sector (Nestlé, Mars, Colgate-Palmolive)
European Commission
France: The Autorité de la concurrence fines three leading Companies in Dog and Cat Food Sector * On 20 March 2012, the Autorité de la concurrence (the Autorité) fined the Nestlé, Mars Incorporated, Colgate-Palmolive Groups and their respective specialist subsidiaries Nestlé Purina Petcare France, (...)

The German Competition Authority imposes fines totalling € 8.7 M on chemical wholesalers involved in price fixing cartel (A.+E. Fischer Chemie, Wiesbaden)
Van Bael & Bellis
On 15 March 2012, the German Federal Cartel Office (“FCO”) announced that it had imposed fines totalling € 8.7 million on 13 companies active in the chemical wholesale sector. According to the FCO, representatives of the companies had agreed on prices and supply quotas and concluded customer (...)

The German Competition Authority concludes cartel proceedings against chemical wholesalers (A. + E. Fischer Chemie, Wiesbaden; Bergchemie J. C. Bröcking & Co.)
European Commission
Germany: The Bundeskartellamt concludes Cartel Proceedings against Chemical Wholesalers - Fines totalling € 8 700 000 imposed on 13 further Companies * On 15 March 2012, the Bundeskartellamt (BKartA) imposed fines totalling € 8 700 000 on 13 companies in the chemical wholesale sector on account (...)

A Kazakh court fines national oil and gas operator a total of KZT 438,6 M for an anticompetitive agreement on exclusive supply of liquefied petroleum gas (JSC "National company" "KazMunayGas")
Center for Development and Protection of Competition Policy
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Ernst & Young (Astana)
On the 14 March 2012, the Specialized Administrative Court of Pavlodar city fined JSC National Company “KazMunayGas” (hereinafter – KazMunayGas) a total of KZT 438,6 mn for entering into an anti-competitive agreement with JSC “Helios”on exclusive supply of liquefied petroleum gas. KazMunayGas is (...)

A Northern District of California jury finds two of five defendants, all from Taiwan, guilty of conspiring to fix the prices of thin-film transistor liquid crystal displays (AU Optronics)
White & Case (Washington)
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White & Case (Washington)
Are Antitrust Violations Crimes Involving Moral Turpitude?* On March 13, 2012, the United States obtained its first trial convictions ever against foreign nationals for antitrust violations under the Sherman Act. A Northern District of California jury found two of the five defendants, all from (...)

A Federal jury in San Francisco returns verdicts in rare price-fixing trial of global liquid-crystal displays conspiracy (AU Optronics)
Jones Day (Brussels)
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Jones Day (Beijing)
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Jones Day (Tokyo)
Companies and individuals that are accused of price-fixing rarely go to trial. Indeed, in the last 10 years, no corporate defendant (and only a handful of individuals) has elected to litigate an international criminal cartel case in a U.S. court. The vast majority of cases are resolved through (...)

The French Competition Authority fines French and German millers for several anticompetitive practices (France Farine, Bach Mülhe)
European Commission
France: The Autorité de la concurrence fines French and German Millers for several anticompetitive Practices foreclosing French Packaged Flour Market* On 13 March 2012, the Autorité de la concurrence (the Autorité) established the existence of a cartel between French and German millers whereby (...)

The Belgian College of Competition Prosecutors finds illegal exchange of price information among producers of fast-moving-consumer-goods
Van Bael & Bellis (Brussels)
On 12 March 2012, the College of Competition Prosecutors submitted a reasoned report to the Competition Council finding an illegal exchange of price information between producers of fast- moving-consumer-goods in the context of a multi-sectoral association. The report concludes the (...)

The Croatian High Administrative Court upholds the NCA’s interpretation of the block exemption regulation on vertical agreements in a resale price maintenance case (M San Grupa)
University of Technology (Tallinn)
On 7 March 2012 the Croatian High Administrative Court (VUS) upheld the infringement decision of the Croatian Competition Authority (AZTN) issued against the wholesaler of the household electronics M SAN Grupa d.d.(MSG) for imposing the resale price maintenance obligations on one of its (...)

The German Competition Authority concludes cartel proceedings against manufacturers of concrete pipes and imposes first fines in the proceedings on concrete paving stones (Berding Beton)
Van Bael & Bellis
According to a press release of 1 March 2012, the German Federal Cartel Office (“FCO”) has concluded its cartel proceedings against manufacturers of concrete pipes and shafts for sewage systems. Following the first fines of € 11.86 million imposed on two manufacturers and individuals in the (...)

Unilateral Practices

The EU General Court establishes the responsibility of a dominant undertaking to prevent the margin squeeze within the limits imposed by ex-ante regulation (Telefónica)
Blackstone Chambers
Ex ante and ex post regulation following Telefónica* Hats off to Spain for having the nerve to suggest that it might have been a better target for the Commission’s attention than Telefónica, the former monopoly telecoms provider recently fined over €150 million for committing a margin squeeze in (...)

The Taiwan Fair Trade Commission fines the leading taxi automobile supplier for implementing a territorial-restriction policy through sale subsidies (Toyota)
Chung Yuan Christian University
Introduction In March 2012, the Taiwan Fair Trade Commission (TFTC) imposed a NT$3,000,000 fine on Toyota, the leading taxi automobile supplier in Taiwan, for limiting the sales of its Taiwanese dealers to the assigned "areas of responsibility" (AOR). This case infused new elements into the (...)

The Czech Régional Court of Brno holds that a request for information is inadmissible only if clearly excessive in a case concerning an abuse of dominance in the telecom sector (Telefonica)
Kinstellar (Prague)
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Kinstellar (Prague)
Subject matter of the case In March 2011, the Office for Protection of Competition (the “Office”) initiated administrative proceedings against Telefónica Czech Republic (“Telefónica“) for alleged abuse of dominant position by means of a margin squeeze in the market of access to Internet services (...)

The EU General Court dismisses Spain’s appeal against the Commission’s infringement decision that held national telecom incumbent liable for an abusive margin squeeze in the regulated Spanish broadband market (Spain / Commission)
German Federal Financial Supervisory Authority (Bundesanstalt für Finanzdienstleistungsaufsicht )
On 29 March 2012 the General Court ("GC") of the European Union dismissed an appeal lodged by the Spanish state against a Commission decision of 4 July 2007 that imposed a €151 million fine on Telefónica for a margin squeeze in the Spanish broadband market. The GC’s judgment confirms the (...)

The Danish Competition Authority decides not to initiate any further investigation in a case of urging municipalities to sign contracts without initiating public tenders (KMD)
Danish Competition and Consumer Authority (Copenhagen)
The IT-company KMD’s strategy to urge municipalities to sign it-contracts with KMD and refrain from initiating public tenders* This case concerns whether the Danish IT-company KMD has breached section 11 in the Danish Competition Regulation and TEUF article 102 by pursuing a strategy to urge (...)

The EU Court of Justice endorses an effects-based approach on the assessment of low pricing policy under Article 102 TFEU (Post Danmark)
University of Amsterdam
Post Danmark: does the ECJ take the effects based approach further than a mere price/cost-test and does it oblige the national judge to apply that effects based approach ex nunc?* In a grand chamber judgment in case C‑209/10, Post Danmark, the European Court of Justice (ECJ) handed down a (...)

The EU Court of Justice affirms the application of a consumer oriented effects-based approach to exclusionary pricing practices of dominant undertakings and the "as efficient competitor test" as a basis for their assessment: A big step towards the consistent application of an effects-based approach to exclusionary pricing practices of dominant undertakings (Post Danmark)
European Commission - DG COMP (Brussels)
The author is Principal Expert in Antitrust Policy at DG Competition, European Commission. The views expressed in this article are his own and do not necessarily reflect those of DG Competition or the European Commission. The author expresses its thanks Ekaterina Rousseva and Carles Esteva (...)

An Italian administrative court applies the doctrine of essential facilities to a theatre (Teatro della Provvidenza)
Desogus Law Office (Cagliari)
On appeal the Regional Administrative Court for Lazio (Tar Lazio) has annulled the non infringement decision of the Italian Competition Authority (ICA) regarding the refusal of the owner of a theatre to grant a theatre troupe access to it. The Tar Lazio applied the doctrine of essential (...)

The EU General Court states that the EU Commission is entitled to request a party to provide pre-accession information for the purpose of evaluating an alleged abuse of dominant position in the telecom sector (Slovak Telekom)
Kinstellar (Prague)
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Kinstellar
Factual background On 22 March 2012, the General Court dismissed the actions brought by Slovak Telekom a.s. (“ST”) against the European Commission (the “Commission”) in joined cases T-458/09 and T-171/10 and upheld the Commission’s decisions C(2009) 6840 of 3 September 2009 (the “Decision I”) and (...)

A Russian Commercial Appeal Court imposes a significant amend for a breach of competition on the market of domain name registration (Ru-Center)
Deloitte (Moscow)
On March 19, 2012 the 9th Commercial (Arbitrazh) Appeal Court of the Russian Federation issued a landmark antimonopoly case decision concerning distribution of domain names. The dispute concerned significant abuses of the organization entitled to manage Russian domain name system. As it was (...)

The Italian Competition Authority fines a dominant undertaking for hindering a public tender procedure for the selection of a new provider of waste management services (Messinambiente/ATO ME3)
Desogus Law Office (Cagliari)
By the decision made on 14 March 2012 the Italian Competition Authority (ICA) has fined Messinambiente for abusing its dominant position in the market for waste management services. Messinambiente infringed competition law because it failed to supply a set of data requested by a public (...)

The Brussels Court of Appeal asks the EU Commission its opinion on the application of EU competition law regarding an alleged abuse of dominance in the IT sector (Kapitol / Magyar Telekom)
Liège University - IEJE
I. Facts Kapitol is a Belgian company. It offers European phonebooks services to its Belgian clients: they are available on both CD and DVD. In order to increase its offer, Kapitol wishes to have access to Magyar Telekom’s database in order to publish a Hungarian phonebook. Magyar Telekom is (...)

The Italian Competition Authority opens an investigation against postal incumbent in order to assess if it had applied the VAT exemption regime on universal services in breach of Art. 102 (VAT regime on postal services)
Bonelli Erede Pappalardo (Rome)
On 6 March 2012 the Italian Competition Authority (’ICA’ or ’the Authority’) opened formal proceedings against Poste Italiane S.p.A. (’Poste’ - the Italian incumbent operator in the postal sector) - for an alleged abuse of its dominant position under Article 102 of the Treaty on the Functioning of (...)

The Spanish Competition Authority fines a professional association for fixing abusive fees (EGEDA)
European Commission
Spain: The Comisión de la Competencia (CNC) fines EGEDA for fixing abusive Fees* On 2 March 2012, the CNC Council concluded that the decision of Entidad de Gestión de Derechos de los Productores Audiovisuales (EGEDA) to charge general monthly fees for the public broadcasting of audio-visual (...)

The European Commission announces the opening of proceedings in the market for the design of commercial control systems (The MathWorks)
Van Bael & Bellis (Brussels)
On 1 March 2012, the European Commission announced that it had opened a formal investigation to assess whether The MathWorks abused a dominant position under Article 102 TFEU in the market for the design of commercial control systems by preventing competitors from achieving (...)

The Indian Patents Office grants its first compulsory licence in the pharmaceutical industry (Natco / Bayer)
Shardul Amarchand Mangaldas & Co (New Delhi)
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Indian Competition Commission
The Curious Case of Compulsory Licensing in India* In a move that has alarmed the pharmaceutical industry, in March 2012 the Indian Patents Office granted its first compulsory licence, for the manufacture and sale of Bayer’s patented drug Nexavar, in Natco Pharma Limited v Bayer Corporation (...)

Mergers

The Cyprus Commission for the Protection of Competition imposes a fine to an unnotified concentration in the pharmaceutical sector (Papaellinas / Sophocles Demetriades)
Neocleous
Factual background The present case concerns the possible breaches of articles 9 and 13 of the Law on Control of Concentrations of Enterprises Laws of 1999 and 2000. The concentration in question was brought about following the conclusion of the Share Purchase Agreement dated 17.02.2010, (...)

The President of the Office of Competition and Consumer Protection clears a merger on the pharmaceutical market in Poland under sell-off conditions applicable to three medicaments (Polpharma/Polfa)
Markiewicz & Sroczynski
I. The Facts On 26 October 2011, Polpharma S.A. with its seat in Starogard Gdanski (“Popharma”), a leading Polish producer of pharmaceutical products and active ingredients, notified the President of the Office of Competition and Consumer Protection (“OCCP”) of its intention to acquire control over (...)

The French Competition Authority clears a merger between two agricultural cooperatives (Champagne Céréales / Nouricia)
French Competition Authority
Press Release published on the official website of the French Competition Authority. The Autorité de la concurrence clears - subject to commitments - the merger of the agricultural cooperative groups Champagne Céréales and Nouricia* Yesterday the Autorité de la concurrence issued a decision by (...)

The Italian Parliament approves liberalization law introducing important changes to the Italian merger control system
Gatti Pavesi Bianchi
ICN’s Recommended Practices I and II state that competition agencies should not assert jurisdiction over a merger unless the transaction would have an appreciable impact in the jurisdiction (the “local nexus” test), so that merger control filing requirements should be triggered only over (...)

The French Competition Authority clears, under conditions, a merger on the sanitation, heating and air-conditioning products sector (Point P / Brossette)
French Competition Authority
Press Release published on the official website of the French Competition Authority. Subject to the sale of 22 retail outlets, the Autorité de la concurrence clears the acquisition of Brossette by the Point P group* In November 2011, at the request of Point P, a subsidiary of the Saint-Gobain (...)

The UK Competition Commission requires U.S. company unwind completed acquisition (Stericycle/Ecowaste Southwest Limited)
Jones Day (London)
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Jones Day (London)
On 21 March, the Competition Commission ("CC") announced that it will require U.S. firm Stericycle to sell Ecowaste Southwest Limited ("ESL") – a company it bought just over a year ago. On what basis has the buyer found itself in such an unsatisfactory situation? The answer probably lies (...)

The Hungarian Competition Office clears the acquisition of the prospective owner and operator of the gas interconnector between Slovakia and Hungary by two state owned companies (Magyar Villamos Művek / MFB Invest Befektetési és Vagyonkezelő / Magyar Gáz Tranzit)
Philip Morris
The Hungarian Competition Office (“HCO”) has approved the acquisition of joint control by Magyar Villamos Művek Zrt. (“MVM”), MFB Invest Befektetési és Vagyonkezelő Zrt. (“MFB Invest”) over Magyar Gáz Tranzit Zrt. (“MGT”), the prospective owner and operator of the gas interconnector between Slovakia and (...)

The Hungarian Competition Office approves the creation of a joint venture for mobile phone services (MPVI Mobil)
Philip Morris
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Kinstellar (Budapest)
The newly established joint venture company, MPVI, which was approved by the HCO intends to provide mobile radio telephone services on the basis of its right to use a frequency use. The Hungarian mobile telephone market is currently dominated by three key players (Magyar Telekom, Telenor and (...)

The UK Competition Commission prohibits a completed merger in the healthcare waste services industry requiring the divestment of the acquired business (Stericycle / Ecowaste Southwest)
St John’s Chambers
Competition Commission prohibition of completed merger a warning to companies that do not wait for UK merger clearance* Unlike in most countries, in the United Kingdom, the notification of mergers is voluntary and there is no waiting period that must expire before a merger can be completed. (...)

The Hellenic Competition Commission (HCC) grantes derogation from the obligation to suspend until issuance of its approval decision (National Bank of Greece / Achaiki Cooperative Bank)
D.N. Tzouganatos & Partners
The HCC pursuant to its decision No 537/VII/2012 allowed NBG to implement its acquisition of ACB prior to the issuance of its approval in order to avoid the danger of destabilization of the banking sector. On March 18th, 2012, pursuant to its decision of 18.03.2012, the Credit and Insurance (...)

The South African Competition Appeal Court upholds Competition Tribunal’s conditional clearance of a retail market acquisition (Walmart / Massmart)
Inter-American Development Bank (IDB)
On 9 March 2012, the South African Competition Appeal Court upheld the Competition Tribunal’s decision to clear the Walmart/Massmart merger conditioned to several obligations that consider public interest needs. The South African Court concluded, after several months of dispute and business (...)

The Chinese MOFCOM clears acquisition in the hard disk drive business (Western Digital / Hitachi)
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McDermott Will & Emery (Shanghai)
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McDermott Will & Emery (Shanghai)
Recently China’s Ministry of Commerce (MOFCOM) approved Western Digital’s proposed acquisition of Hitachi’s hard disk drive business on a conditional basis. Containing the most comprehensive clearance conditions ever imposed by MOFCOM, this decision mirrors previous guidance issued by the (...)

The Chinese MOFCOM clears an acquisition in the desktop hard drive disks market but imposes both structural and behavioral remedies (Western Digital / Hitachi)
Skadden, Arps, Slate, Meagher & Flom (Brussels)
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Skadden, Arps, Slate, Meagher & Flom (Hong Kong)
Companies contemplating global mergers,acquisitions and joint ventures should be aware that the Ministry of Commerce (MOFCOM), China’s antitrust agency tasked with merger control, is increasingly imposing competition remedies exceeding those required by the European Commission, U.S. Federal (...)

The Danish Public Prosecutor fines an agricultural company who intentionally or by gross negligence failed to correct wrong information relevant for a merger notification (Danish Agro)
Danish Competition and Consumer Authority (Copenhagen)
Agricultural company pays fine in settlement for failure to correct wrong information relevant to a merger* On January 9, 2012, a Danish agricultural company entered into a settlement with the Public Prosecutor for infringing section 23 of the Danish Competition Act. The Danish agricultural (...)

The Portuguese Competition Authority considers mere coordinated contacts between two companies can consubstantiate a merger (Zon/Ar Telecom concentration)
Morais Leitão, Galvão Teles, Soares da Silva & Associados (Porto)
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Morais Leitão, Galvão Teles, Soares da Silva & Associados (Porto)
I. Introduction On December 9, 2011, the Portuguese Competition Authority (PCA) was notified of a concentration under which Zon TV Cabo Portugal (Zon) notified the acquisition of a group of assets, specifically the residential customers of AR Telecom – Acesso e Redes de Telecomunicações (AR (...)

State Aid

The EU Commission orders recovery of state aid unlawfully granted by the Netherlands as decreased price for sale of land (Leidschendam-Voorburg)
College of Europe (Bruges)
Article published on Lexxion State Aid Blog The Market Economy Vendor Principle: Sale of Public Land by the Dutch Municipality of Leidschendam-Voorburg*[Commission Decision SA.24123] The previous post examined a case where the European Commission applied the Market Economy Investor Principle (...)

The EU General Court partly annuls EU Commission decision on restructuring aid granted to a bank on account of the financial crisis (ING)
Van Bael & Bellis (Brussels)
On 2 March 2012, the General Court (“GC”) has partly upheld ING’s appeal against a Commission decision of 2009 regarding various forms of aid granted by the Dutch State to the banking group ING in the context of the latter’s restructuring plan during the financial crisis. The ING group had (...)

Procedures

The EU Commission fines two Czech energy companies for obstructing dawn raids (Energetický a průmyslový holding and EP Investment Advisors)
Van Bael & Bellis (Brussels)
On 28 March 2012, the European Commission imposed a total of € 2,500,000 in fines on Energetický a průmyslový holding and EP Investment Advisors, active in the energy sector in the Czech Republic, for obstructing an on-the-spot inspection carried out by Commission officials from 24 to 26 (...)

The US Central District of California rejects plaintiff’s market definition of live rock music concerts (Live Concert Antitrust Litigation)
Cohen Milstein (Washington)
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Cohen Milstein (New York)
This case illustrates the degree to which courts have become fundamentally confused in recent years about "market definition" concepts, with the consequence that cases increasingly are dismissed based on rejection of a plaintiff’s proposed product market definition, and expert analysis of market (...)

The Macedonian Government regulates leniency under the new competition act
University of Technology (Tallinn)
On 13 November 2010 the new Macedonian Competition Act has entered into force replacing the preceding Competition Act that has been in force since 2005. The new law introduced a number of substantive and procedural changes that have been aimed at harmonizing the Macedonian competition law with (...)

The EU General Court confirms Commission’s right to request documents pre-dating a member state’s accession to the EU (Slovak Telecom)
Van Bael & Bellis (Brussels)
On 22 March 2012, the General Court rendered a judgment confirming the European Commission’s power to request documents pre-dating a member state’s accession to the EU. Indeed, the Court found that the Commission had been entitled to order Slovak Telekom to disclose information predating (...)

The Competition and Consumer Appeals Tribunal rejects the national competition authority’s claim to be party in proceedings reviewing its decisions, but allows it a limited right to attend and participate in such proceedings
In terms of Article 13A of Maltese Competition Act (Chapter 379 of Laws of Malta, hereinafter referred to as ’MCA’), the Director General (Competition) (hereinafter referred to as ’Director’) applied to the Competition and Consumer Affairs Tribunal (hereinafter referred to as ’Tribunal’), following (...)

The UK Competition Appeal Tribunal clarifies scope of litigation privilege in Office of Fair Trading investigations (Tesco)
Morgan Lewis (London)
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Jones Day (London)
The UK Competition Appeal Tribunal ("CAT") has ruled that litigation privilege attaches to documents of parties being investigated, even when created before the Office of Fair Trading ("OFT") takes a formal infringement decision. The CAT confirmed that, once the OFT has issued a Statement of (...)

The U.S. Third Circuit Court of Appeals narrowly construes the scope of recoverable costs from electronic discovery to tasks, such as transferring and scanning data, that are analogous to making copies in the car racing industry (Race Tires Am./Hoosier Racing Tire Corp.)
Morgan Lewis (Philadelphia)
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Morgan Lewis (Philadelphia)
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Dow Jones (Princeton)
A recent opinion vacating most of the electronic discovery costs affirmed in Race Tires II provides clarity in the Third Circuit as to the limited scope of electronic discovery costs recoverable by a prevailing civil party. The rapidly evolving area of the law regarding whether a prevailing (...)

The US Third Circuit Court of Appeals limits the prevailing party’s recoverable costs from e-discovery to the equivalent of making copies in the motor racing industry (Race Tires Am./Hoosier Racing Tire Corp.)
Paul Hastings (New York)
On March 16, 2012, the Third Circuit Court of Appeals weighed into a debate raging among district courts on whether broad e-discovery costs are taxable on the bill of costs under 28 U.S.C.A. § 1920 and thus recoverable by the prevailing party. Race Tires America, Inc. v. Hoosier Racing Tire (...)

The EU Commission issues new detailed guidance on confidentiality claims
Van Bael & Bellis (Brussels)
On 16 March 2012, the European Commission published new informal guidance on how confidentiality claims should be made by undertakings in respect of documents and submissions provided to DG Competition in the context of investigations into alleged breaches of Article 101 and Article 102 (...)

The UK Government announces reform of the competition regime
Morgan Lewis (London)
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Squire Patton Boggs (London)
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Jones Day (London)
On 15 March 2012, the UK Government announced its plans for reforming the UK competition regime. The Government has stopped short of radically redesigning the competition regime. Although one government body is replacing two, and there are significant changes expected for criminal prosecutions, (...)

The Spanish Competition Authority publishes a report on the bill to create the National Markets and Competition Commission (Comisión Nacional de los Mercados y de la Competencia)
University of Castilla-La-Mancha (UCLM)
The Spanish Competition Authority (Comisión Nacional de la Competencia,CNC) has published a report on the bill to create the national markets and competition commission, in which it makes some proposals for amendments of the draft legislation. In March, 15, 2012, the Council of the Competition (...)

The Finnish Ministry of Economy sets up a steering group to investigate the possibility of merging the national Competition Authority and the Consumer Agency
European Commission
Finland: Steering Group to assess Possibility of Merger between Finnish Competition and Consumer Authorities * The Finnish Ministry of Employment and the Economy (the Ministry) announced in March 2012 that it will set up a steering group to investigate the possibility of merging the Finnish (...)

The Spanish Competition Authority publishes report on bill to create a new regulatory body (National Markets and Competition Commission)
European Commission
Spain: The Comisión Nacional de la Competencia (CNC) publishes Report on Bill to create National Markets and Competition Commission* In its meeting on 15 March 2012, the CNC Council adopted its Report on the Bill to Create the National Markets and Competition Commission (CNMC). The CNC takes (...)

The Netherlands Competition Authority publishes its final report on competition among real estate agents
European Commission
The Netherlands: Market Study on Estate Agents finalised* On 8 March 2012, the Netherlands Competition Authority (NMa) published its final report on competition among estate agents who provide home buying and selling services. The study examines the current competitive situation as well as the (...)

The Hungarian Competition Authority establishes two new organizational units with respect to merger control and antitrust
European Commission
Hungary: Two new Sections at the Hungarian Competition Authority* Since 1 March 2012, two new sections, the Merger Section and the Antitrust Section, have been fully operational within the Gazdasági Versenyhivatal (GVH - Hungarian Competition Authority). These sections replace the Financial (...)

The US Supreme Court leaves in place third circuit rule welcoming challenges to foreign conduct into U.S. Courts (Animal Science)
Jones Day (Cleveland)
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Jones Day (Chicago)
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Jones Day (Chicago)
This week the U.S. Supreme Court announced it would not review a Third Circuit decision (Animal Science) that made it easier for antitrust plaintiffs to bring claims in U.S. courts for conduct occurring overseas under the Foreign Trade Antitrust Improvements Act (“FTAIA”). The Supreme Court’s (...)

Regulatory

The Romanian Competition Authority issues its opinion on proposed amendments to law on taxi services (Law n°38/2003)
European Commission
Romania: Competition Council’s Opinion on proposed Amendments to Law on Taxi Services* The Competition Council (the Council) has considered the latest envisaged amendments to the Taxi Law no. 38/2003 regarding taxi transport and taxi rental services (Taxi Law), which are found to be contrary to (...)

Public sector

The Spanish Central Administrative Tribunal of Contractual Appeals grants public buyers wide discretion to exclude supplies of reused or refurbished goods (FREMAP)
European Procurement Law Group
On 30 March 2012, the Spanish Central Administrative Tribunal of Contractual Appeals (Tribunal Administrativo Central de Recursos Contractuales) issued its Decision 83/2012 regarding the award of a contract for the supply of IT consumables where the contracting authority had excluded the (...)

The French Supreme Administrative Court adopts a strict approach with regards to equal treatment of bidders in case of a false information from the contracting authority (Dynacité)
Université Aix-Marseille
On 12 March 2012, the French Council of State, the supreme administrative court responsible for reviewing judgments of the lower administrative courts in particular in the field of public procurement contracts, ruled on an unusual question. A contracting authority, Dynacité which is in charge of (...)

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