March 2013

Anticompetitive practices

The Cyprus Commission for the Protection of Competition rejects a complaint ascertaining the existence of an abuse of dominance on the market of of measurement services for electromagnetic fields in mobile base stations (Sigint Solutions / University of Cyprus)
Neocleous (Nicosia)
The case concerned the participation of the University of Cyprus in the tender of the Cyprus Telecommunications Authority (CYTA) in relation to the provision of measurement services for electromagnetic fields in mobile base stations for 2012. There are two mobile companies in Cyprus which own (...)

The French Competition Authority issues an opinion on the generalisation of complementary health insurance
French Competition Authority (Paris)
Press Release published on the official website of the French Competition Authority. The Autorité de la concurrence recommends that each company remain free to choose its complementary health insurance body*. On 1 February 2013, the Association pour la promotion de l’assurance collective (APAC) (...)

The Paris Court of Appeal upholds the French Competition Authority in the jet fuel sector in the Reunion’s island (Shell / Chevron / Total / Esso / Air France)
Kramer Levin Naftalis & Frankel (Paris)
1. The facts In January 2003, Air France lodged a complaint before the French Competition Authority (FCA) regarding an alleged cartel between the four oil companies established in the La Reunion Island Airport during the 2002 Air France’s tender. First inquiries were made in La Reunion and near (...)

The Paris Court of Appeal confirms decision of NCA in aviation fuel cartel case (Chevron-Texaco, Total, Exxon Mobil and Shell)
Van Bael & Bellis (Brussels)
On 28 March 2013, the Paris Court of Appeal confirmed a 2008 decision of the French Competition Authority imposing fines totalling € 41.1 million on fuel companies of the Chevron- Texaco, Total, Exxon Mobil and Shell groups for collusive tendering in the supply of aviation fuel to Air (...)

The German Competition Authority concludes a series of proceedings against consumer goods manufacturers on account of illegal exchange of competition-relevant information (Nestlé)
German Competition Authority (Bonn)
Bundeskartellamt concludes proceedings against consumer goods manufacturers on account of illegal exchange of information and imposes multi-million fine on Nestlé* Today the Bundeskartellamt has concluded a series of proceedings against consumer goods manufacturers on account of illegal (...)

The German Competition Authority concludes a series of proceedings against consumer goods manufacturers with fines totalling approximately € 20 M (Nestlé)
European Commission (Brussels)
Germany: The Bundeskartellamt concludes Proceedings against Consumer Goods Manufacturers* On 27 March 2013, the Bundeskartellamt (BKartA) has concluded a series of proceedings against consumer goods manufacturers with fines totalling approximately € 20 000 000 being imposed on Nestlé (...)

The Brussels Court of Appeal annuls decisions of the President of the Competition Council requiring leading diamond supplier to continue supplying Belgian diamond trader (De Beers / Spira)
Van Bael & Bellis (Brussels)
On 26 March 2013, the Brussels Court of Appeal annulled three decisions of the President of the Competition Council who had extended the preliminary measures requiring leading diamond supplier De Beers to continue supplying rough diamonds to Belgian diamond trader Spira. The Brussels (...)

The Austrian Cartel Court imposes fine for resale price maintenance in consumer electronics products case (Philips Austria)
European Commission (Brussels)
Austria: The Cartel Court imposes Fine in Consumer Electronics Products Case* On 26 March 2013, the Cartel Court imposed a € 2 900 000 fine on Philips Austria GmbH (Philips Austria) for Resale Price Maintenance (RPM) between the latter and a number of retailers (Court reference number 29 Kt (...)

The US FTC asks the Eleventh Circuit to overturn a lower court’s decision to allow a reverse-payment settlement between branded and a generic pharmaceutical manufacturers (Watson Pharmaceuticals)
Vinson & Elkins (Washington)
,
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 Spanish Competition Authority imposes fines in paper envelopes cartel case (Andaluza de Papel, Antalis Envelopes Manufacturing)
European Commission (Brussels)
Spain: The Comisión Nacional de la Competencia imposes Fines in Paper Envelopes Cartel Case* In its Resolution of 25 March 2013, the Comisión Nacional de la Competencia (CNC) Council found that several companies active in the manufacture, distribution and marketing of paper envelopes had taken (...)

The Belgian President of the Competition Council rejects a request for interim measures in a case regarding cooperation between prisons and sheltered workshops (Comptoir de Russie)
European Commission (Brussels)
Belgium: No Interim Measures in Case regarding Cooperation between Prisons and Sheltered Workshops* On 23 March 2013, the President of the Competition Council rejected a request for interim measures in a case regarding an agreement fixing the terms of cooperation between prison workshops (...)

The Arnhem-Leeuwarden Court of Appeal rules on the appreciability of a restriction by object (Batavus /Vriend’s Tweewielercentrum)
Allen & Overy (Amsterdam)
,
Allen & Overy (Amsterdam)
I. The Parties Batavus B.V. (‘Batavus’) is a Dutch bicycle manufacturer, with a 20% market share. Batavus is part of the Accell Group, a holding company that owns several European bicycle manufacturers. Vriend’s Tweewielercentrum (‘Vriend’) is an (online) retailer of bicycles. II. The Facts Vriend (...)

The Cyprus Commission for the Protection of Competition rules the absence of abuse of dominance by the incumbent on the in the Cypriot mobile telephony sector (Areeba / CYTA)
Neocleous
CY24 Areeba Ltd against Cyprus Telecommunications 22.03.13 www.competition.gov.cy — NCA, abuse of dominance Authority Case number 11.17.10/2005 The case concerned the re-examination and re-assessment of the complaint lodged/filed by Areeba Ltd (hereinafter referred to as “Areeba” and/ or (...)

The portuguese competition authority sanctions supplier recommended retail sale prices materially imposed as minimum prices before retailers (Sera, Unipessoal)
Morais Leitão, Galvão Teles, Soares da Silva & Associados (Porto)
,
Morais Leitão, Galvão Teles, Soares da Silva & Associados (Porto)
I. Background The Portuguese Competition Authority (PCA) decision of 21 March 2013, in case PRC 2009/12, was triggered by an antitrust complaint of June 2009, filed by a national online retailer (Pet4you) active in the sale to end consumers of aquarium products against Sera GmbH and Sera (...)

The US Court of Appeals for 9th Circuit finds an operator of several BitTorrent websites liable for contributory copyright infringement on an inducement theory (Columbia Pictures/Gary Fung)
Sideman & Bancroft (San Francisco)
U.S. Appeals Court for the 9th Circuit finds BitTorrent operator liable for contributory infringement on an inducement theory (Columbia Picture v. Fung)* On 21 March 2013, the U.S. 9th Circuit affirmed in part and vacated in part the California Central District Court decision that Gary Fung, (...)

The Federal Court of Australia hands down its first decision involving a bid rigging case after the entry into force of new cartel laws (Norcast/Braken)
Deakin University
In July 2009 Australia’s new cartel laws entered into force. On 19 March 2013 the Federal Court of Australia (Gordon J) handed down its first decision involving these new laws. Norcast S.ár.L(Norcast), a subsidiary of the private equity fund, Pala Investments Limited (Pala), alleged that Castle (...)

The Federal Court of Australia issues its first decision on cartel liability under the Competition and Consumer Act 2010: a wake up call to those doing private equity deals (Norcast v Bradken)
Brent Fisse Lawyers (Paddington)
1. The decision in Norcast S.ár.L v Bradken Limited (No 2) [2013] FCA 235 (19 March 2013) The decision of the Federal Court of Australia (Gordon J) in Norcast S.ár.L v Bradken Limited (No 2)[2013] FCA 235 (Norcast v Bradken) is the first test case on liability under the cartel amendments in 2009 (...)

The Chinese NDRC working groups conduct serious investigations into monopolistic practices in the cement industry
China Competition Bulletin (Beijing)
,
China Competition Bulletin (Beijing)
,
Institute of American Studies
It is reported that the National Development and Reform Commission (NDRC) has sent 30 working groups to various provinces and municipalities to conduct a large-scale investigation into unfair competition and monopolistic conduct in the cement industry. Price alliances and leading businesses (...)

The German Competition Authority concludes its cartel proceedings against several manufacturers of branded drugstore products (Coty)
German Competition Authority (Bonn)
Multi-million fines imposed on manufacturers of drugstore products on account of anti-competitive information exchange* The Bundeskartellamt has concluded its proceedings against several manufacturers of branded drugstore products. The authority has imposed fines of another 39 million Euros on (...)

The German Competition Authority issues a fining decision against manufacturers of drugstore products (KWR working group)
Steve Szentesi Law Corporation
Associations & Information Exchanges – German Case Highlights Importance of Commonsense Precautions to Reduce Competition Risk* Readers of my blog will know that I do a lot of work with trade and professional associations. In this regard, a topic that perennially arises (and which I (...)

The German Competition Authority fines six several manufacturers of branded drugstore products for information exchange (Manufacturers of drugstore products cartel)
European Commission (Brussels)
Germany: Multi-million Fines imposed on Manufacturers of Drugstore Products on account of anti-competitive Information Exchange* On 18 March 2013, the Bundeskartellamt (BKartA) concluded its proceedings against several manufacturers of branded drugstore products (body care products, cleaning (...)

The Taiwan Fair Trade Commission imposes record fines on independent power producers for collectively refusing to adjust the rate for wholesale electricity (Gong-Chu-Tzyh)
Chung Yuan Christian University
Introduction On March 15, 2013, the Taiwan Fair Trade Commission (“TFTC”) imposed a record fine of $213.08 million (NT$6.32 billion) on nine independent power producers (“IPPs”) for collusion after the breakdown of several price renegotiations between the Taiwan Power Company (Taipower) and the (...)

The US Eastern District of New York Federal Court awards plaintiffs $162 million in first-ever civil price-fixing verdict against Chinese companies (Vitamin C Cartel)
Quinn Emanuel Urquhart & Sullivan (Brussels)
,
Office of Attorney General
,
Shearman & Sterling (New York)
On March 14, 2013, a federal jury in Brooklyn, New York returned a verdict in In re Vitamin C Antitrust Litigation, No. 1:06-md-1738 (E.D.N.Y.), finding that two Chinese companies had unlawfully fixed prices and controlled the supply of vitamin C exports from China to the United States. (...)

The District Court Rotterdam finds insufficient proof for existence of agreement on non-compete clause (Stichting Carinova and Stichting Carint-Reggeland)
CMS EU Law Office (Brussels)
I. Facts On 21 October 2010, the Dutch Competition Authority (the former Nederlandse Mededingingsautoriteit, as of April 2013, Autoriteit Consument & Markt, hereinafter "ACM") imposed a fine on two foundations, Carint-Reggeland (hereinafter "Carint") and Carinova, totaling an amount of € (...)

The EU General Court upholds cartelist fine in banana cartel case but reduces fine for another cartelist (Dole, Weichert)
Van Bael & Bellis (Brussels)
On 14 March 2013, the General Court dismissed an appeal brought by Dole against a Commission decision fining Dole € 45.6 million for its participation in an alleged concerted practice consisting in the coordination of quotation prices for bananas supplied in Northern Europe. In a separate (...)

The EU Court of Justice hands down preliminary ruling on circumstances in which agreements concerning the price of automotive repairs concluded between insurance companies and repair shops may have an anti-competitive object (Allianz, Generali)
Van Bael & Bellis
On 14 March 2013, the Court of Justice of the European Union (“ECJ”) handed down a judgment on a reference for a preliminary ruling from the Hungarian Supreme Court on the application of Article 101 TFEU to certain agreements between insurance companies and car repair shops. Once a (...)

The EU Court of Justice reaffirms the distinction between the anticompetitive effect-object of an agreement caught under the prohibition in Article 101(1) TFEU without setting out clearer terms of demarcation between the two disjunctive conditions (Allianz)
Liege Competition and Innovation Institute
Flatline* I recently had the opportunity to sift through the recent case-law of the Court. The CJEU ruling in Allianz Hungary, C-32/11 stands out. Our Lords again blurred the object/effect distinction. The Court held that “object” restrictions can be established by proof of anticompetitive (...)

The EU Court of Justice rules on the dichotomy between anticompetitive object-effect with respect to bilateral arrangements between car dealers and insurance companies (Allianz)
University of Groningen
Allianz and the Object-Effect Dichotomy in Article 101(1) TFEU: A Practical Solution Meets Not So Practical Competition Law* Two separate insurance companies Allianz and Generali concluded a number of contracts with autorepair shops on the prices and other conditions that would apply for cars (...)

The Dutch District Court of Midden-Nederland sees no causal link between existence of elevator cartel and alleged overpriced elevator maintenance contract (VvE woningen "Het Schip" / Otis)
CMS DeBacker (Brussels)
I. Facts On 21 February 2007, the European Commission imposed a fine of € 224,932,950 on elevator manufacturer Otis for its participation in the ’elevator cartel’, together with other manufacturers Kone, Mitsubishi, Schindler and ThyssenKrupp (total fine: € 992,312,200 – in those days the largest (...)

The Turkish Competition Authority closes the investigation it launched ex officio into alleged resale price maintenance of the market leader LPG distribution company (AYGAZ)
University of Sussex
This study analyses the decision of the Turkish Competition Authority (TCA) in which it has closed the investigation it launched ex officio into alleged resale price maintenance of the market leader LPG distribution company, AYGAZ, due to a lack of appreciable effect on competition in the LPG (...)

The Athens Administrative Court of Appeal upholds the NCA’s decision finding infringements of Art 101 and 102 TFEU and Art 1 and 2 Act 703/1977 through the implementation of exclusionary practices in the market for salty snack products (Tasty Foods)
Bank of Greece
Introduction On 13 March 2013, the Athens Administrative Court of Appeal (Dioikitiko Efeteio Athinon, hereafter: the Court) delivered Ruling No 869/2013 upholding Decision No 520/VI/2011 of the Hellenic Competition Commission (Elliniki Epitropi Antagonismou, hereafter: HCC). The contested (...)

The Italian Competition Authority concludes its first investigation against a notarial council for unlawful agreement (Consiglio Notarile di Lucca)
Lipani Catricalà & Partners (Rome)
1. Premise On 13 March 2013, the Italian Competition Authority (Autorità Garante della Concorrenza e del Mercato or AGCM, hereinafter the “ICA”) decided to impose a fine on the Notarial Council of Lucca (hereinafter “NCL”) for unlawful agreement concluding proceeding I747. According to the ICA, (...)

The German Competition Authority takes a critical view of the online platform project Germany’s Gold (Germany’s Gold)
German Competition Authority (Bonn)
ARD/ZDF Online Platform "Germany’s Gold" raises competition concerns* The Bundeskartellamt takes a critical view of the ARD/ZDF online platform project "Germany’s Gold". In April 2012 several companies of the ARD and ZDF broadcasting groups, together with eleven other production and licensing (...)

The US FTC files amicus curiae brief supporting generics’ claim in patent dispute (Actelion Pharms/Apotex)
DLA Piper Weiss-Tessbach (Vienna)
U.S. FTC files amicus curiae brief supporting generics’ claim in patent dispute* On 11 March 2013 the U.S. Federal Trade Commission (“FTC”) filed an amicus curiae brief in the case Actelion Pharms Ltd. V. Apotex Inc. which is being heard in the U.S. District Court for New Jersey supporting the (...)

The Spanish National Appeal Court reduces fines against a cartel in the wine sector giving a new interpretation of calculation of fines that may lead to favor cartelist activity in the future (Bodegas Williams & Humbert)
Kim & Chang
On March 8, 2013, the Audiencia Nacional (AN), the Spanish National Appeal Court, ruled in the judicial review of actions brought by Bodegas Williams & Humbert, SA against the Decision of the Spanish Competition Authority (CNC) dated July 28, 2010. The CNC had found elements to conclude (...)

The Turkish Competition Board imposes highest fine ever against twelve banks for collusion in the cash deposit, credit and credit card services markets (Akbank, Turkiye Garanti Bankasi, Garanti Odeme Sistemleri...)
GlaxoSmithKline (Istanbul)
The Turkish Competition Board (the "TCB") recently concluded an investigation against 12 major banks operating in Turkey and imposed a total fine of TL 1.1 billion (approximately EUR 475 million). This is the highest fine ever imposed by the TCB. The investigation was initiated following (...)

The German Competition Authority confirms its searches at the premises of several sanitary ware wholesalers
German Competition Authority (Bonn)
Bundeskartellamt confirms searches of sanitary ware wholesalers* The Bundeskartellamt confirms that on 6 March 2013 it carried out searches at the premises of several sanitary ware wholesalers. The authority followed up the suspicion that some sanitary ware wholesalers operate a system of (...)

The Turkish Competition Authority announces its long-awaited decision regarding imposition of fines on major banks for concerted practices in relation to credit card fees and interest rates for deposits (Akbank and Others)
TCA Hits Banks With Record Fines* In Friday evening (8 March 2013), after the closing of stock exchange, the TCA has announced its long-awaited decision regarding major banks of Turkey. The TCA hits 12 major banks with record fines totalling 1,11 billion Turkish liras (around 480 million (...)

The Turkish Competition Board grants individual and group exemptions to leading soft drinks company regarding its wholesale distribution contracts in Turkey (Coca Cola)
Kinstellar (Istanbul)
A. Introduction On 7 March 2013, the Turkish Competition Board (the “Board”) concluded a preliminary investigation concerning Coca Cola Satış ve Dağıtım A.Ş. (“Coca Cola”) as a result of the application filed by the Özbağ Meşrubat Gıda Pazarlama Dağıtım Taşımacılık San. ve Tic. Ltd. Şti. (“Complainant”). (...)

The President of the Belgian Competition Authority dismisses a request for interim measures regarding the termination of a contract for services in the penitentiary labour sector (Comptoir de Russie v. Régie du Travail Pénitentiaire)
Philippe & Partners (Brussels)
I. The Parties Comptoir de Russie sprl (hereinafter “National2International” or “N2I”) is a limited liability company offering service contracts to final clients for the execution of low-qualified manual services. Régie du Travail Pénitentiaire (hereinafter “RTP”) is a public entity organizing (...)

The Italian Supreme Court reaffirms the principle that infringement decisions of the Competition Authority constitute “privileged evidence” in follow on compensation claims (Private motor insurance cartel)
Simmons & Simmons (Milano)
On 04 March 2013, an order of the Corte di Cassazione - the Italian Supreme Court - reaffirmed the principle that infringement decisions of the Italian Competition Authority (ICA) constitute “privileged evidence” in follow on compensation claims. This order is related, yet again, to disputes (...)

The Romanian Competition Council issues best practices guidelines on the legal treatment of the lobbying activities performed jointly by the undertakings
Mircea & Partners (Bucharest)
Summary: The Romanian Competition Council issued recently its first guidelines, which supplement the EC Guidelines on the applicability of Article 101 of the Treaty on the Functioning of the European Union to horizontal co-operation agreements - 2011/C 11/01. The object of these guidelines is (...)

Unilateral Practices

The UK Competition Appeal Tribunal dismisses the claim for exemplary damages against a water management company (Albion Water / Dŵr Cymru Cyfyngedig)
University of Dundee
Exemplary Damages in Competition Litigation* Much ink has been spilt following 2 Travel v. Cardiff Bus and Albion Water v. Dŵr Cymru Cyfyngedig on the subject of competition litigation in Europe. An axiom with varying justification is that European competition litigation must not embrace (...)

The UK Competition Appeal Tribunal awards damages in a follow-on claim arising from abuse of dominance on the market for transportation and partial treatment of water (Albion Water / Dŵr Cymru Cyfyngedig)
Blackstone Chambers
Albion v Dwr Cymru: Incompetence and counterfactuals* The Competition Appeal Tribunal today delivered that rarest of beasts: a judgment awarding damages in a follow-on claim. After its decade-long fight, Albion Water has been awarded around £2 million for Dŵr Cymru’s abuse of dominant position in (...)

The Guangdong High Court rules against plaintiff in high-profile on-line abuse of dominance case (Qihoo / Tencent)
First Principles Economics (FPE)
On the 28th March 2013 the Guangdong High Court published their eagerly awaited decision regarding the abuse of dominance antitrust dispute between Qihoo 360 (Qihoo, the Plaintiff) and Tecent QQ (Tencent, the Defendant). The decision was over fifty thousand Chinese characters in length. This (...)

The Croatian Competition Authority accepts commitments of the public broadcaster concerning retransmission of television channels by “pay TV” operators (Hrvatska radiotelevizija)
University of Technology (Tallinn)
On 28 March 2013 the Croatian Competition Authority (AZTN) closed its investigation into the alleged abuse of dominant position by the public broadcasting company Hrvatska radiotelevizija (HRT) by accepting a number of behavioral commitments related to retransmission of television channels by (...)

The UK Competition Appeal Tribunal awards highest damages ever in a case involving an abuse of dominant position in the water sector (Albion Water)
One Essex Court
There are approximately 45 private actions for damages pending in the United Kingdom Courts. Some are stayed pending final decisions of the Commission and the European Courts; some are at the disclosure stage; some are setting up “confidentiality rings” prior to disclosure; and others are lost in (...)

The Chinese Guangdong High People’s Court renders a judgment on the definition of relevant market in an alleged abuse of dominance case in the IT sector (Qihoo / Tencent)
Renmin University of China
I. Introduction 1. Beijing Qihoo Technology Co., Ltd. (hereinafter referred to “Qihoo”) is the copyright owner and operator of 360 safe software. Tencent Technology (Shenzhen) Co., Ltd., and Shenzhen Tencent Computer System Co., Ltd. (hereinafter referred to “Tencent”) are respectively the (...)

The Italian Competition Authority finds that the post incumbent breached article 102 TFEU by applying the VAT exemption regime to individually negotiated universal services in breach of Article 102 TFEU (VAT regime on postal services)
Bonelli Erede Pappalardo (Rome)
In its decision adopted on 27 March 2013, the Italian Competition Authority (“ICA” or the “Authority”) found Poste Italiane S.p.A. (“Poste” - the Italian incumbent operator in the postal sector) to have abused its dominant position in certain liberalised postal markets for the provision of universal (...)

The US Supreme Court reverses the decisions of the lower courts and emphasizes that any model supporting a plaintiff’s damages case must be consistent with its liability case (Comcast / Behrend)
Sheppard Mullin (Washington)
Comcast v. Behrend Sets a Higher Bar for Class Certification* On March 27, 2013, the U.S. Supreme Court continued its recent trend of imposing more stringent standards for class certification in Comcast Corporation v. Behrend, 569 U.S. ___ (2013). At issue was whether the proponents of (...)

The German Regional Court of Düsseldorf makes reference for a preliminary ruling to the CJEU on standard-essential patents (Huawei / ZTE)
Stanford University - Stanford Law School
German Court makes reference for a preliminary ruling to the CJEU on standard-essential patents* On 21 March 2013, the Landgericht Düsseldorf (“Düsseldorf Regional Court”) made a reference (the order is only available in German) for a preliminary ruling to the Court of Justice of the European (...)

The Cypriot Competition Authority rejects complaint filed by licensee of large shopping mall alleging abuse of economic dependence and discriminatory practices (Tiffany Investments)
Chrysses Demetriades & Co. LLC (Limassol)
1. Background In its decision dated 19/3/2013 the Cypriot Commission for the Protection of Competition (the “CPC”) decided to reject a complaint which was filed by a shopping mall licensee (the “complainant”) against the two companies which respectively own and manage a large shopping mall located (...)

The Polish Office of Competition and Consumer Protection opens proceedings against mobile telephony operators for alleged abuse of collective dominant position (Polska Telefonia Cyfrowa, Centertel, Polkomtel)
European Commission (Brussels)
Poland: The Office of Competition and Consumer Protection (UOKiK) opens Proceedings against Mobile Telephony Operators for alleged Abuse of Collective Dominant Position* On 18 March 2013, the President of the Polish Office of Competition and Consumer Protection (UOKiK) opened antimonopoly (...)

The German Competition Authority institutes proceedings against seven district heating suppliers on suspicion of their charging abusively excessive prices (Dalkia)
German Competition Authority (Bonn)
Bundeskartellamt examines excessive district heating prices* The Bundeskartellamt has instituted proceedings against seven district heating suppliers on suspicion of their charging abusively excessive prices. The investigations will focus on around 30 different supply areas throughout nearly (...)

The EU Commission announces the finalization of preliminary investigation into E5 concerning the standardization process for future mobile communications services and the likelihood of competition foreclosure
DLA Piper Weiss-Tessbach (Vienna)
European Commission closes preliminary investigation into E5* On 7 March 2013 the European Commission announced that it had closed its preliminary investigation into E5, i.e. Europe’s five leading telecom operators (Deutsche Telekom, France Telecom, Telefonica, Vodafone and Telecom Italia), (...)

The European Commission fines one compagny €561 Million for breach of commitments (Microsoft)
European Commission (Brussels)
,
Jones Day (Brussels)
,
Jones Day (Brussels)
The European Commission has imposed an unprecedented €561 million ($730 million) fine on Microsoft, finding it broke its pledge to offer consumers a choice of how they access the Internet, rather than defaulting to Microsoft’s Explorer browser. This is the first time a company has been fined for (...)

The European Commission fines US software company €561 M for breach of commitments (Microsoft)
European Commission (Brussels)
,
Jones Day (Brussels)
,
Jones Day (Brussels)
The European Commission has imposed an unprecedented €561 million ($730 million) fine on Microsoft, finding it broke its pledge to offer consumers a choice of how they access the Internet, rather than defaulting to Microsoft’s Explorer browser. This is the first time a company has been fined for (...)

The EU Commission opens formal proceedings against the Lithuanian railway incumbent for removing railway track (Lietuvos geležinkeliai)
Van Bael & Bellis (Brussels)
On 6 March 2013, the European Commission announced that it had opened formal antitrust proceedings against the Lithuanian railway incumbent AB Lietuvos geležinkeliai to investigate whether it restricted competition on the freight rail markets in Lithuania and Latvia by removing a railway (...)

The European Commission imposes a fine for non-compliance with browser choice commitments (Microsoft)
European Commission (Brussels)
European Commission: Microsoft fined for Non-Compliance with Browser Choice Commitments* On 6 March 2013, the European Commission (the Commission) imposed a fine on Microsoft for failing to comply with binding commitments. According to those commitments, Microsoft had to display to Windows (...)

The Supreme Administrative Court of Lithuania draws the limitations of the Competition Authority’s discretion to close the investigation under the Rules of Procedure (Viasat)
Klavins Ellex
Viasat case is a national precedent setting the boundaries of the discretion of Lithuania competition authority to close the investigation subject to undertakings. In 2009 Lithuanian competition authority launched an investigation into the alleged infringement of Article 102 TFEU and its (...)

The Lithuanian Supreme Administrative Court declares that the Competition Council has to perform new evaluation of commitments since its decision lacked motives and was inconsistent (TEO / Viasat)
Law firm of Raimundas Moisejevas (Vilnius)
Background On 22 November 2011, the Lithuanian Competition Council passed resolution on termination of investigation proceedings concerning conformity of Viasat World Limited and Viasat AS actions to the Article 9 of the Competition law. The present article of the Competition law prohibited (...)

A U.S. Court dismisses claims of monopolization against a supplier of drilling fluids based on an alleged refusal to deal (M-I)
Cornell University
On March 4, 2013, a federal district court in Oklahoma dismissed monopolization claims brought by TKO Energy Services (TKO) against M-I and its affiliated companies (TKO Energy Services LLC v. M-I LLC, U.S. District Court, Northern District of Oklahoma, 4:12-cv-00108-GKF-PJC 2013). Since this (...)

Mergers

The Czech Supreme Administrative Court cancels the decision of the Regional Court which has refused a producer of lignite access to the file of a competitor in a merger control case (Litvínovská Uhelná)
Kinstellar (Prague)
Subject matter of the case On 3 August 2008, Litvínovská uhelná a.s. (“Litvínovská uhelná”), a producer of lignite and at that time a part of the Czech Coal Group (one of the major players in the Czech energy sector) filed a complaint to the Czech Office for Protection of Competition (the “Office”) (...)

The Competition Commission of Singapore approves proposed alliance between two airlines subject to commitments (Emirates/Qantas Airways)
BHP Billiton (Singapore)
On 28 March 2013, the Competition Commission of Singapore (the “CCS”) issued its Notice of Decision to approve the proposed alliance between Emirates and Qantas Airways Limited (the “Parties”) (the “Proposed Alliance”), subject to voluntary undertakings. In order to alleviate the competition concerns (...)

The European Commission invites public comments regarding a proposal to simplify procedures under the EU Merger Regulation
King’s College (London)
Proposed Changes to Simplified Merger Notification Procedure* I Introduction On March 27, 2013, the Commission invited public comments regarding a proposal to simplify procedures under the EU Merger Regulation.[1] Changes would include altering market share thresholds relating to which (...)

The European Commission proposes simplification of merger control filings
Van Bael & Bellis (Brussels)
,
Van Bael & Bellis (Brussels)
On 27 March 2013, the European Commission opened a consultation on proposed revisions to its Notice on Simplified Procedure and Merger Implementing Regulation. The proposed amendments are intended to increase the number of transactions that can benefit from the so-called “simplified (...)

The Chinese MOFCOM publishes for public comment the draft Rules Regarding Imposition of Restrictive Conditions on Concentrations of Undertakings
King & Wood Mallesons (New York)
Path towards A More Streamlined Merger Control System – MOFCOM Publishes Draft Rules on Merger Remedies* To increase clarity and transparency on the merger remedy regime under the Anti-Monopoly Law (“AML“), China’s Ministry of Commerce (“MOFCOM“) published the draft Rules Regarding Imposition of (...)

The Hungarian Competition Authority approves 13 acquisitions of control concerning 158 food retail stores across the country (Match, Profi and Cora)
Hungarian Competition Authority (Budapest)
Information about mergers on the food retail market* Substantial ownership shifts took place in the food retail market in Hungary between June 2012 and February 2013. During this period the GVH (Gazdasági Versenyhivatal - Hungarian Competition Authority) received 13 merger applications (...)

The German Competition Authority clears proposed acquisition of a district hospital in Heppenheim (Kreiskrankenhaus Bergstraße)
German Competition Authority (Bonn)
Bundeskartellamt clears hospital merger in Bergstraße region* In main examination proceedings the Bundeskartellamt has cleared plans by Heidelberg University Hospital, Universitätsklinikum Heidelberg, to acquire a 90% share of the district hospital Kreiskrankenhaus Bergstraße gGmbH in Heppenheim. (...)

The Hungarian Competition Authority establishes that a contractual restriction cannot be regarded as an ancillary restriction if one of the parties does not constitute an undertaking directly participating in a merger (Spar / Match)
Dentons (Budapest)
,
Hungarian Competition Authority (Budapest)
I. Facts SPAR Magyarország Kereskedelmi Kft. (“Spar”) acquired sole control over a part of Csemege-Match Kereskedelmi Zrt. (“Match”) that comprised assets, equipments and employees of the retail store (“Store”) of Match situated in the MOM Park shopping mall. On the same day when the above-mentioned (...)

The German Competition Authority conditionally clears merger on hospital market (Asklepios Group / Rhön-Klinikum)
German Competition Authority (Bonn)
Participation of Asklepios Group in rival Rhön-Klinikum cleared subject to condition* The Bundeskartellamt has approved plans by Asklepios Kliniken Verwaltungsgesellschaft to acquire a 10.1% stake in Rhön-Klinikum AG, subject to a condition precedent. In the Goslar region the project would have (...)

The Cyprus Commission for the Protection of Competition declares that transaction by an SPV controlled by 4 natural persons who do not achieve any turnover is not notifiable (International Lease Finance Corporation / Jumbo Acquisition)
Chrysses Demetriades & Co. LLC (Limassol)
Background This case concerned a notification of a concentration purusnat to the Cyprus Law on the Control of Concentrations (the “Law”), by Jumbo GP Ltd (“Jumbo”), Jumbo Acquisition Ltd ( “Jumbo Acquisition”) and International Lease Finance Corporation (“ILFC”). Jumbo is a special purpose vehicle (...)

The EU Court of Justice rejects electricity supplier’s request to suspend deadline to decide whether to sell off power plant project (EDF)
Van Bael & Bellis (Brussels)
On 7 March 2013, the European Court of Justice (“ECJ”) rejected the application for interim measures by Électricité de France (“EDF”), which had sought to postpone its obligation to decide whether to sell or invest in a particular power plant project, as required by previous merger commitments. (...)

State Aid

The EU Court of Justice holds that the EU Commission did not correctly apply the hypothetical private creditor test when holding that Poland had granted aid to steel producer (Technologie Buczek)
Van Bael & Bellis (Brussels)
In a judgment delivered on 21 March 2013, the ECJ has followed the GC that the European Commission did not correctly apply the hypothetical private creditor test when holding that Poland had granted aid to the Technologie Buczek Group (“TB”). The ECJ confirmed that a comparative analysis (...)

The EU Court of Justice rules on the interpretation of the Commission’s decision concerning regional existing regional aid schemes for processing and marketing of German agricultural products (Magdeburger)
DLA Piper Weiss-Tessbach (Vienna)
This decision by the Court of Justice concerns the interpretation of Article 2 of Commission Decision 1999/183/EC of 20 May 1998 regarding State aid granted on the basis of existing regional aid schemes for processing and marketing of German agricultural products. The preliminary reference has (...)

The European Commission reiterates that the profitability of an investment must be determined ex ante, even in case of capital injection (Ducroire/Delcredere)
College of Europe (Bruges)
The Profitability of an Investment Must be Determined Ex Ante Main points Internal transfer of capital which is not used to fund new economic activities is not State aid. Injection of fresh capital to satisfy solvency and liquidity requirements still has to comply with State aid rules. A (...)

The EU Commission decides that the measure implemented in the form of acquisition of bonds doesn’t constitute state aid within the meaning of Article 107(1) TFEU (Nauta)
College of Europe (Bruges)
Article published on Lexxion State Aid Blog The Private Investor Principle Applied to Loans [Commission Decision 2013/528]* Introduction The State aid issue in this case is relatively straightforward. Nauta, a Polish shipyard, received a two-year loan from IDA, the state-owned Polish (...)

The EU Commission finds that the state aid granted under the form of a fiscal measure implemented in breach of the standstill provision was compatible with the internal market (Multiplier Giftenaftrek)
College of Europe (Bruges)
Article published on Lexxion State Aid Blog Fiscal Leveraging: Donations and State Aid for Culture and Sports* Introduction In this blog I examine primarily a Dutch measure that supports cultural institutions by providing tax incentives to individuals and corporations to make donations to (...)

The EU Court of Justice rules that seemingly separate interventions may constitute a single measure if they are inseparable by way of timing, purpose and the condition of the beneficiary undertaking (Bouygues)
College of Europe (Bruges)
Article published on Lexxion State Aid Blog Where is the Money? The Link between Advantage and Transfer of State Resources* On 19 March 2013, the Court of Justice delivered an important judgment in case C-399/10 P, Bouygues v European Commission concerning aid that was granted by France to (...)

The EU Court of Justice establishes that the General Court erred in law, both in its review of the Commission’s finding on public resources conferring state aid and in the assessment of the links between the established advantage and the commitment of public resources (Bouygues)
Mircea & Partners (Bucharest)
I. Introduction This state aid judgment of the CJEU refers to credit guarantees under the form of a non-implemented shareholder loan agreement and the relation between the advantages conferred on the beneficiary and the allocation of state resources. The General Court judgment adopted an (...)

The Irish High Court dismisses claims for the liability of the Irish State for damages regarding an unlawful risk equalisation scheme in the provision of private health insurance by insurers (BUPA, Anor)
Matheson (Dublin)
Background In 2006, the Irish High Court dismissed the claims of BUPA Ireland (“BUPA”) challenging the introduction by the Irish State of a risk equalisation scheme (the “Scheme”) in the provision of private health insurance by insurers in Ireland. The scheme operated based on the concept of (...)

The EU Commission initiates formal investigation of the German exemption from network charges for large electricity consumers
Bird & Bird (Dusseldorf)
Commission Opens In-depth Inquiry into Potential State Aid for Large Electricity Consumers Exempted from Grid Charges in Germany* The Commission opened an in-depth investigation to find out whether exemptions for large electricity consumers from network charges granted in Germany since 2011 (...)

The European Commission opens formal state aid investigation into the German exemption of large electricity consumers from network charges
Herbert Smith Freehills (Brussels)
,
The EU Law Firm
,
Herbert Smith Freehills (London)
On 6 March 2013, the European Commission (’the Commission’) decided to investigate in-depth the German exemption of large electricity consumers from network charges, as it was concerned that the exemption may involve State aid. In Germany, network charges are established by network operators and (...)

Procedures

The Macedonian Competition Authority releases its 2012 annual report
University of Technology (Tallinn)
On 31 March 2013 the Macedonian Competition Authority (KZK) released its annual report summarizing competition law enforcement activities carried out in 2012. It should be noted that until 13 November 2010 the KZK was acting pursuant to the old Competition Act, which provided for two distinct (...)

The US Northern District of New York denies class certification due to individualized damage calculations (Roach/TL Cannon)
Cohen Milstein (Washington)
,
Cohen Milstein (New York)
Current and former employees of the Applebee’s restaurant stores located in New York brought a class action against Applebee’s based on its failure to adhere to a New York state regulation that required that on each day in which the spread of hours worked exceeds 10, and employee must receive an (...)

The UK Competition Appeal Tribunal dismisses appeal to seek review of the OFT decision concerning extended warranties website (John Lewis)
The University of Manchester
Background of the case John Lewis plc (“JLP”) case rules out a dispute about the information that should appear on a price comparison website that is related to extended warranties (“EW”) for TVs, washing machines and other domestic electrical goods (“DEGs”). This stems from the Office of Fair (...)

The Czech Supreme Administrative Court renders two rulings dealing with access of complainants to files in competition proceedings (Asiana v Student Agency and Litvinovska uhelna cases)
Weil, Gotshal & Manges (Prague)
Just few days apart in March 2013 (on 20 March and 28 March 2013), the Supreme Administrative Court rendered two rulings which deal with access of complainants to files regarding competition proceedings to which they were not direct participants. In the first case, the Supreme Administrative (...)

The UK Competition Appeal Tribunal allows an extension of the time limits for appeals under the circumstances of the case and in respect of the principle of legitimate expectations (Somerfield / OFT)
Blackstone Chambers
The OFT’s tobacco decision: Is it dead yet?* Late in 2011, the Office of Fair Trading was forced to concede before the Competition Appeal Tribunal that it could no longer defend the theory of harm contained in its Decision on alleged pricing agreements between tobacco manufacturers and (...)

The US Supreme Court overturns class certification, upholdding Rule 23 “rigorous analysis” (Comcast / Behrend)
DLA Piper (Washington)
,
GeyerGorey (Washington)
,
DLA Piper (Dallas)
Comcast v. Behrend: Supreme Court overturns class certification, upholds Rule 23 “rigorous analysis”* In Comcast Corp. et. al. v. Behrend, et. al., the Supreme Court of the United States, in a 5-4 decision written by Justice Antonin Scalia, reaffirmed the Court’s recent holding in Wal-Mart v. (...)

The US Supreme Court applies class certification’s rigorous analysis also to causation and damages (Comcast / Behrend)
Cohen Milstein (Washington)
,
Cohen Milstein (New York)
Plaintiff cable TV subscribers asserted Sherman Act conspiracy and monopolization claims, alleging that certain so-called “clustering transactions” that had the effect of reducing competition for cable television services in the Philadelphia region were agreements in restraint of trade. In (...)

The US Supreme Court confirms that courts must conduct a rigorous analysis to determine whether antitrust class action plaintiffs meet the requirements for class certification (Comcast)
Jones Day (Los Angeles)
,
Jones Day (Washington)
,
Jones Day (Chicago)
The U.S. Supreme Court has reaffirmed that courts must conduct a "rigorous analysis" to determine whether antitrust class action plaintiffs meet the requirements for class certification, even when that requires inquiry into the merits of the underlying claims, and individual issues of damages (...)

The German Regional Court of Düsseldorf refers to the EUCJ questions concerning the availability of remedies to holders of FRAND-pledged SEPs prevailing in patent infringement actions (Huawei / ZTE)
Jones Day (Dusseldorf)
The Regional Court of Düsseldorf, Germany, has asked the Court of Justice of the European Union ("CJEU") to clarify a number of questions at the intersection of EU and German antitrust laws and patent law. The Düsseldorf court hears the greatest number of patent cases in Germany and is one of the (...)

The US Supreme Court preserves the Class Action Fairness Act (Standard Fire / Knowles)
Jones Day (Los Angeles)
,
Jones Day (Chicago)
On March 19, 2013, the U.S. Supreme Court held in Standard Fire Ins. Co. v. Knowles that named plaintiffs in class actions could not, before class certification, avoid going to federal court by stipulating to a cap on damages. Although Standard Fire was not an antitrust case, the decision will (...)

The US Supreme Court holds that named plaintiffs in class actions could not, before class certification, avoid going to federal court by stipulating to a cap on damages (Standard Fire Ins. v. Knowles)
Jones Day (Los Angeles)
,
Jones Day (Chicago)
On March 19, 2013, the U.S. Supreme Court held in Standard Fire Ins. Co. v. Knowles that named plaintiffs in class actions could not, before class certification, avoid going to federal court by stipulating to a cap on damages. Although Standard Fire was not an antitrust case, the decision will (...)

The Romanian Competition Council launches sector inquiries into pharmaceutical market and electronic communication services
European Commission (Brussels)
Romania: The Competition Council launches Sector Inquiries into Pharmaceutical Market and Electronic Communication Services* On 19 March 2013, the Romanian Competition Council (RCC) opened by an Order of its President a new sector inquiry to assess possible malfunctions of the pharmaceutical (...)

The EU Commission revises guidance on conduct of dawn raids
Van Bael & Bellis (Brussels)
On 18 March 2013, the Commission published revised guidance on the conduct of on-the-spot inspections at the business premises of companies suspected of having engaged in anti- competitive behaviour. The main aim of the revision is to reflect rapid technological changes in the last few (...)

The Dutch Supreme Court confirms legal privilege for in-house lawyers
Van Bael & Bellis (Brussels)
On 15 March 2013, the Dutch Supreme Court (Hoge Raad der Nederlanden) confirmed the existence of a general legal privilege for in- house lawyers. The Supreme Court considered that the Akzo case law of the European Court of Justice (ECJ) is not applicable beyond EU competition law and (...)

The French Competition Authority sets out conditions for network sharing in mobile telephony sector and considers impact on competition of national roaming arrangements between MNOs
European Commission (Brussels)
France: The Autorité de la concurrence sets out Conditions for Network Sharing in Mobile Telephony Sector and considers Impact on Competition of national Roaming Arrangements between MNOs* Following a Government referral, the Autorité de la concurrence (the Autorité) issued an opinion on 11 (...)

The Swedish Government makes proposals after an inquiry regarding enhanced effectiveness of competition law enforcement
European Commission (Brussels)
Sweden: Proposals of Swedish Government’s Inquiry regarding Enhanced Effectiveness of Competition Law Enforcement* On 8 March 2013, the results of the Inquiry entitled “Enhanced Effectiveness of Competition Law Enforcement” were presented to the Swedish Government. This follows the launch by the (...)

The EU General Court refuses access asked by a whistleblower in the European Commission consumer detergent cartel to leniency documents submitted by co cartellists to defend itself in a related national authority case (Henkel)
Simmons & Simmons (London)
The pitfalls associated with a co cartellist seeking leniency documents submitted in a European Commission case to defend itself in a related national authority case. In brief Henkel, the whistleblower in the European Commission consumer detergent cartel, has failed in its attempt to use the (...)

The UK Court of Appeal clarifies the rules regarding “on the merit” appeals and underlines in red the “insuperable task” that parties challenging competition authority decisions must overcome (Everything Everywhere)
The University of Manchester
Everything Everywhere v Competition Commission was an appeal brought by the UK’s mobile telephone operator, Everything Everywhere Ltd (the “Appellant”), following the Competition Appeal Tribunal’s (the “Tribunal”) ruling in May 2012. The Court of Appeal (the “Court”) dismissed the appeal in favour of (...)

The Brussels Court of Appeal holds that communications between a company and its in-house counsel are entitled to the protection of the attorney-client privilege under Belgian law, and therefore are not subject to production to the Belgian Competition Authority (Belgacom)
,
Axinn Veltrop & Harkrider (New York)
The Brussels Court of Appeal held that communications between a company (Belgacom Group) and its in-house counsel were entitled to the protection of the attorney-client privilege under Belgian law, and therefore were not subject to production to the Belgian Competition Authority (“BCA”), which (...)

The Brussels Court of Appeal recognises legal professional privilege to in-house lawyers (Belgacom)
Van Bael & Bellis
,
Van Bael & Bellis (Brussels)
On 5 March 2013, the Brussels Court of Appeal delivered a landmark judgment finding that in-house lawyers’ communications benefit from the so-called “legal professional privilege”, i.e. they are protected by the confidentiality of communications between lawyers and their clients. The Court’s (...)

The Austrian Parliament enacts several proposals for amendments to the current competition regime law
European Commission (Brussels)
Austria: Competition Law Amendments to be in force from 1 March 2013* The Austrian parliament has enacted several proposals for amendments to the current competition regime law taking effect from 1 March 2013. The objective thereof is to enhance the efficiency of the enforcement of (...)

The US Court of Appeals for the Third Circuit gives green light to antitrust action against giant cablem provider (Comcast)
BakerHostetler (Philadelphia)
,
DLA Piper (Philadelphia)
Experts Can Turn Tide in Class Certification—Federal judge gives green light to antitrust action against Comcast* A federal judge recently dealt another substantial and costly blow to Comcast in Behrend v. Comcast Corp., an antitrust lawsuit against the giant Philadelphia-based cable provider. (...)

Regulatory

The French Competition Authority issues an opinion on the data transport market
French Competition Authority (Paris)
Press Release published on the official website of the French Competition Authority. The Autorité de la concurrence issues a favourable opinion relating to ARCEP’s proposition to extend by one year the current regulation of the wholesale market of “leased lines”. This extension will enable the (...)

The French Competition Authority issues an opinion regarding a draft decree on regulated gas tariffs
French Competition Authority (Paris)
Press Release published on the official website of the French Competition Authority. Maintaining regulated gas tariffs has an unfavourable influence on the competitive process without making any positive contribution to the competitiveness of French companies or the purchasing power of (...)

The England and Wales Court of Appeal dismisses the appeal contesting the validity of Ofcom’s choice of cost model and states that pointing out flaws in the reasoning adopted by a disputed decision is not enough in order to be successful on a merits appeal (Everything Everywhere)
Blackstone Chambers
Appeals on the merits: only pick a hole if you can fill it* In his recent blog “Down the rabbit hole,” Tom Richards described the “quasi judicial review within an appeal” contained in s.193(7) Communications Act 2003 as something of a Wonderland. On 6 March 2013 it was the turn of the Court of (...)

Public sector

The UK Parliament adopts regulations on procurement, patient choice and competition in the health care sector requiring EU-compliant interpretation
European Procurement Law Group
New Paper: A critical assessment of the new health care procurement rules in the UK* The recently adopted UK National Health Service (Procurement, Patient Choice and Competition) (No. 2) Regulations 2013 include an interesting (and somehow unsettling) provision authorising anti-competitive (...)

The Swedish Competition Authority decides that the practice of excluding suppliers from ‘tax havens’ is incompatible with EU law (Municipality of Kalmar)
Mircea & Partners (Bucharest)
I. Introduction OECD’s list of uncooperative tax havens has become the world’s shortest black list, only two small islands in Pacific being listed as uncooperative tax havens. The use of legal methods to modify a corporation’s financial situation in order to lower the amount of corporate tax owed (...)

All issues

  • Latest News issue 
  • All News issues
  • Latest Special issue 
  • All Special issues