March 2017

Anticompetitive practices

The German Federal Council adopts an amendment to act against restraints of competition
Jones Day (Frankfurt)
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Morgan Lewis (Frankfurt)
Key changes triggered by the amendment relate to a company’s liability for cartel infringements, the introduction of a transaction value test into merger control, private enforcement through the implementation of the EU Cartel Damages Directive, the assessment of market power in multilateral (...)

The German Federal Council votes in favour of passing the ninth amendment to the Act against Restraints of Competition
Baker McKenzie (Brussels)
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Baker McKenzie (Brussels)
Update on the 9th ARC Revision On 31 March 2017, the German Federal Council (Bundesrat) has voted in favour of passing the ninth amendment to the Act against Restraints of Competition (ARC) (Gesetz gegen Wettbewerbsbeschränkungen). According to the 31 March plenary report, the draft law is now (...)

The UK Competition Authority publishes preliminary findings on price comparison websites
Cleary Gottlieb Steen & Hamilton (London)
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Cleary Gottlieb Steen & Hamilton (London)
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Cleary Gottlieb Steen & Hamilton (London)
In September 2016, the Competition and Markets Authority (“CMA”) launched a Market Study into digital comparison tools (“DCTs”). On March 28, 2017, the CMA published an update on the Market Study setting out its preliminary findings and areas of focus for the second part of the Market Study. The (...)

The Belgian Competition Authority fines an undertaking for resale price maintenance in the fresh bakers’ yeast market (Algist Bruggeman)
Belgian Competition Authority (Brussels)
The Belgian Competition Authority fines Algist Bruggeman 5.489.000 euros for resale price maintenance and impeding low priced competitors regarding fresh bakers’ yeast* The Investigation and Prosecution Service of the Belgian Competition Authority (BCA) fines Algist Bruggeman nv and her mother (...)

The Belgian Competition Authority fines a leading yeast producer and three parent companies for several infringements of Articles 101 and 102 TFEU (Algist Bruggeman)
Van Bael & Bellis (Brussels)
On 22 March 2017, the Belgian Competition Authority (“BCA”) imposed a fine amounting to € 5,489,000 on leading yeast producer Algist Bruggeman NV (“AB”), and three parent companies, for several infringements of Articles 101 and 102 of the Treaty on the Functioning of the European Union (“TFEU”) and (...)

The EU Commission proposes new rules to enable national competition authorities to be more effective enforcers of EU antitrust rules
DG COMP (Brussels)
Antitrust: Commission proposal to make national competition authorities even more effective enforcers for the benefit of jobs and growth* The European Commission has proposed new rules to enable Member States’ competition authorities to be more effective enforcers of EU antitrust rules. The (...)

The German Federal Ministry for Economic Affairs and Energy proposes establishing a Digital Agency for the regulation of digital markets
Hogan Lovells (Munich)
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Hogan Lovells (Munich)
Germany suggests ramping up regulation of digital platforms by establishing Digital Agency with robust antitrust mandate* Will Germany establish a “Digital Agency” to monitor compliance with competition law rules in digital markets? Will a German “Digital Antitrust Enforcer” become a role model (...)

The German Competition Authority issues an interim report on conditions for the supply of raw milk
German Competition Authority (Bonn)
Interim report on conditions for the supply of raw milk* The Bundeskartellamt has today published an interim report on its administrative proceeding concerning conditions of supply for raw milk. In the report the authority presents key results of its investigations so far and offers initial (...)

The EU Commission fines six undertakings that supplied air conditioning and engine cooling components to car manufacturers (Thermal Systems Cartel)
Van Bael & Bellis (Brussels)
On 8 March 2017, the European Commission announced that it had imposed fines under the cartel settlement procedure totalling € 155 million on six companies that supplied air conditioning and engine cooling components to car manufacturers. The companies involved, Behr, Calsonic, Denso, Panasonic, (...)

The Egyptian Competition Authority issues its first bid-rigging cartel decision (Heart and chest surgeries cartel)
Helmy, Hamza & Partners (Baker McKenzie Cairo)
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Queen Mary University (London)
On 7 March 2017, the Egyptian Competition Authority (ECA) issued its first bid-rigging cartel decision. The cartel involved seven of the biggest suppliers in Egypt of heart and chest valves and antioxidants for heart and chest surgeries, and related to public tenders for governmental and (...)

The Supreme Court of Cyprus confirms the €31 Million imposed by the Commission for the Protection of Competition on nine commercial banks for anticompetitive practices (JCC)
Trojan Economics (Nicosia)
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Cyprus Law Office
On 27/01/2016 the Cyprus Commission for the Protection of Competition (“CPC”) ended its investigation against eight commercial banks (Bank of Cyprus Public Company Ltd (“BOC”), Marfin Popular Bank Public Co Ltd (“Marfin”), Hellenic Bank Ltd (“Hellenic Bank”), Alpha Bank Cyprus Ltd (“Alpha Bank”), (...)

Unilateral Practices

The French Competition Authority fines an energy company for abuse of dominance on the retail gas supply market (ENGIE)
Van Bael & Bellis (Brussels)
On 22 March 2017, the French Competition Authority (“FCA”) fined ENGIE (formerly known as GDF-Suez) € 100 million for abusing its dominant position on the retail gas supply market by using the customer database and business infrastructure it inherited from its former monopoly status in order to (...)

The Italian Competition Authority accepts commitments from Italian collecting society in abuse of dominance investigation (Nuovoimaie)
Van Bael & Bellis (Brussels)
On 22 March 2017, the Italian Competition Authority (“ICA”) accepted commitments from the copyright-collecting society NUOVOIMAIE (“NI”) aimed at addressing ICA’s concerns that NI had abused its dominant position on the Italian market for management and intermediation services in the audio-visual (...)

The Belgian Competition Authority fines the country’s largest yeast producer for resale price maintenance and abuse of dominance (Algist Bruggeman)
Liège University - IEJE
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Liège University - IEJE
I. The Parties Algist Bruggeman NV (‘Algist’) is the largest supplier of yeast products in Belgium. Algist markets itself as a producer of high quality yeast products with a corresponding price positioning. II. The Facts In January 2013, the BCA opened an ex officio investigation after an (...)

The EU Commission launches market test on an energy company’s commitments relating to the Central and Eastern European gas markets (Gazprom)
Van Bael & Bellis (Brussels)
On 13 March 2017, the European Commission launched a market test on commitments submitted by Gazprom aimed at addressing concerns over its alleged abuse of dominance on Central and Eastern European gas supply markets. In April 2015, the European Commission announced that it had sent a (...)

The UK Competition Authority alleges two pharmaceutical companies have concluded a pay-for-delay agreement (Actavis / Concordia)
British Competition Authority - CMA (London)
CMA alleges anti-competitive agreements for hydrocortisone tablets* The CMA today alleged that Concordia and Actavis signed illegal agreements which enabled high prices for a life-saving drug to be prolonged. The Competition and Markets Authority (CMA) alleges that between January 2013 and (...)

Mergers

The EU Commission blocks attempted merger between Europe’s two largest stock exchange operators, due to their inability to offer remedies that would prevent the creation of a de facto monopoly in the markets for fixed income clearing (Deutsche Börse / London Stock Exchange)
King’s College (London)
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DG COMP (Brussels)
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DG COMP (Brussels)
DB/LSE - Assessing financial infrastructure markets: Network effects, service portfolios and viability of remedies* In a nutshell: The Commission prohibited the merger between the two largest European financial infrastructure groups, Deutsche Börse and London Stock Exchange, in March 2017. This (...)

The EU Commission issues a decision prohibiting a merger between two stock exchange companies due to the risk of foreclosure in the markets for post-trade services (Deutsche Börse / London Stock Exchange Group)
Compass Lexecon (London)
Introduction On 29 March 2017, the European Commission issued its decision prohibiting the merger between Deutsche Börse AG (“DBAG”) and London Stock Exchange Group (“LSEG”). The Commission was concerned about, inter alia, the risk of foreclosure in the markets for post-trade services. In this (...)

The EU Commission clears merger between two global chemical companies, subject to remedies to ensure price and innovation competition in the markets for pesticides, petrochemicals (Dow / DuPont)
DG COMP (Brussels)
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Skadden, Arps, Slate, Meagher & Flom (Brussels)
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DG COMP (Brussels)
Dow/DuPont: protecting product and innovation competition * In a nutshell: The main concerns arising in the Dow/DuPont merger related to crop protection, on both product and innovation competition. Innovation is of key importance to this industry and the merging parties were two of only five (...)

The Delaware Supreme Court affirms a termination of merger agreement due to the inability of a party to deliver a necessary tax opinion (Energy Transfer / Williams)
White & Case (New York)
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White & Case (New York)
Resolving a dispute surrounding one of the largest M&A deals of 2015, the Delaware Supreme Court affirmed the Delaware Chancery Court’s decision allowing Energy Transfer Equity, L.P. to terminate its proposed acquisition of The Williams Companies, Inc. due to the inability of Energy (...)

The German Competition Authority clears a merger on the sanitary wholesale market (Wilhelm Gienger / Cordes & Graefe)
German Competition Authority (Bonn)
Bundeskartellamt clears merger between sanitary wholesalers* The Bundeskartellamt has cleared the acquisition of the business operations of Wilhelm Gienger GmbH, Stuttgart, by Cordes & Graefe KG, Bremen, after the companies changed their original plans in response to concerns expressed by (...)

The French Competition Authority fines companies for breaching commitments on fibre optic rollout (Altice / SFR)
Van Bael & Bellis (Brussels)
On 9 March 2017, the French Competition Authority (“FCA”) fined Altice and SFR Group € 40 million for violating commitments entered into with the FCA at the conclusion of its review of the Altice/SFR merger in October 2014. By way of background, the commitments required Altice/ SFR to honour an (...)

The EU General Court annuls a Commission decision prohibiting a merger in the parcel delivery sector on due process grounds (UPS / TNT)
White & Case (Brussels)
Background On 15 June 2012, the global specialist transport and logistics provider United Parcel Services (“UPS”) notified the European Commission of its proposed acquisition of TNT Express NV (“TNT”) under the EU Merger Regulation. UPS and TNT are both active on international express small (...)

The EU General Court annuls the Commission’s decision to prohibit a merger in the International express package delivery sector (UPS / TNT)
CRA International (London)
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CRA International (London)
The General Court annulled on 7 March 2017 the European Commission’s decision in 2013 to prohibit UPS’ proposed acquisition of TNT. The judgment was much awaited also because of its potential for clarifying the role of efficiencies in merger review. In practice, the Court overturned the decision (...)

The EU General Court annuls a prohibition merger decision and finds that the Commission had failed to properly communicate the final version of its econometric analysis (UPS / TNT)
Van Bael & Bellis (Brussels)
On 7 March 2017, the General Court (“GC”) annulled the European Commission’s decision to prohibit UPS’ acquisition of TNT Express under the EU Merger Regulation. By way of background, UPS notified the acquisition of TNT Express to the Commission in June 2012. Following an in-depth Phase II (...)

The UK Competition Appeals Tribunal upholds a decision to prohibit a merger in the energy and commodities trading sector (ICE / Trayport)
CRA International (London)
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CRA International (London)
The CAT upheld on 6 March 2017 the CMA’s decision to prohibit ICE’s acquisition of the energy and commodities trading platform Trayport. The CMA’s original decision found that ICE could use ownership of Trayport to foreclose competitors, shifting liquidity to its own exchanges. It was the first (...)

The French Competition Authority clears a merger on the upstream markets of broadcasting rights of television programmes (Shine / Endemol)
French Competition Authority (Paris)
The Autorité de la concurrence clears the acquisition of Shine France by the Endemol Shine Group.* On 2 February 2017, Endemol Shine notified the Autorité de la concurrence of its planned acquisition of sole control of the company Shine France which, prior to the transaction, it controlled (...)

State Aid

The EU Court of Justice concludes that the conditions laid down in the Altmark judgment are relevant for determining whether a measure constitutes state aid (Viasat Broadcasting)
Van Bael & Bellis (Brussels)
On 8 March 2017, the European Court of Justice (“ECJ”) handed down its judgement on appeal in case C-660/15 P, Viasat Broadcasting UK (“Viasat”) Ltd v European Commission. The case concerns aid granted to the Danish public broadcaster TV2/Danmark for the execution of public service obligations. In (...)

The EU Court of Justice rules on the compatibility with State aid rules of Ministerial Orders setting out the feed-in tariffs of electricity produced by power plants using solar radiative energy (Enedis / Axa)
White & Case (Paris)
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White & Case (Paris)
The European Court of Justice rules on the compatibility with the European State aid rules of the Ministerial Orders of 10 July 2006 and of 12 January 2010 setting out the feed-in tariffs of electricity produced by power plants using solar radiative energy. By an order dated 15 March 2017, the (...)

The EU Court of Justice considers the relationship between Altmark and Article 106(2) TFEU (Viasat Broadcasting)
College of Europe (Bruges)
*Article published on StateAidHub.eu Blog (click here), republished in e-Competitions with the courtesy of the author(s). The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

Procedures

The German Federal States Council approves reform of the national competition law
Heinz & Zagrosek (Köln)
Germany adopts competition law reform* Following the Parliament’s approval in early March, the Federal States Council, Germany’s second legislative chamber, has approved the most recent reform to German competition law on March 31, 2017. The new law will enter into force upon publication in the (...)

The Dutch District Court of Gelderland dismisses a company’s passing-on defence in private enforcement litigation (ABB / TenneT)
Van Bael & Bellis (Brussels)
On 29 March 2017, the District Court of Gelderland (the “Court”) dismissed a passing-on defence put forward by the Swiss technology company ABB in a cartel damages case initiated by the Dutch network grid operator TenneT. TenneT claimed that it had incurred damages as a result of higher prices (...)

The Anti-monopoly Commission of China’s State Council releases a Draft for Comments of Anti-monopoly Guidelines on Abuse of Intellectual Property Rights
Gaopeng & Partners (Beijing)
I. Introduction On March 23, 2017, the Anti-monopoly Commission of China’s State Council released the Anti-monopoly Guidelines on Abuse of Intellectual Property Rights (Draft for Comments) (hereinafter referred to as the ’Draft’) on the official website of the Ministry of Commerce of China. The (...)

The Polish Competition Authority issues guidelines on business secrets protection
WKB Wierciński Kwieciński Baehr (Warsaw)
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WKB Wierciński Kwieciński Baehr (Warsaw)
On 16 March 2017 the Polish Competition Authority (Prezes Urzędu Ochrony Konkurencji i Konsumentów, the “PCA”) issued guidelines on the request to limit the right of access to the case files (full name: “Information on the manner of submitting the request to limit the right of access to the case (...)

The Antitrust Division of the DOJ sentences the fifth foreign executive extradited to face charges in the United States (Yuval Marshak)
Morgan Lewis (Washington)
Five foreign executives have been extradited and convicted since 2010, reinforcing the Division’s continued emphasis on extradition in recent years. On March 13, 2017, the Antitrust Division (Antitrust Division) of the US Department of Justice (DOJ) convicted its fifth foreign executive who was (...)

The German Parliament implements the EU Antitrust Damages Directive
Cleary Gottlieb Steen & Hamilton (Cologne)
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Cleary Gottlieb Steen & Hamilton (Cologne)
On March 10, 2017, the German Parliament adopted the 9th amendment to the German Act against Restraints of Competition (“9th Amendment”). While many of the revisions are of a declaratory nature, some changes should make cartel damages actions in Germany more attractive – in particular the new (...)

The French administration implements the EU Directive 2014/104 on antitrust damages actions (Decree n° 2017-305)
McDermott Will & Emery (Paris)
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McDermott Will & Emery (Paris)
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McDermott Will & Emery (Paris)
On 10 March 2017, France finally implemented into French law the EU Directive 2014/104 of 26 November 2014 on antitrust damages actions (see our Special Report) through Order n° 2017-303 and its implementing Decree n° 2017-305 of 9 March 2017. France was more than two months late, but there are (...)

Regulatory

The EU Commission adopts a new anonymous whistleblower tool
DG COMP (Brussels)
Antitrust: Commission introduces new anonymous whistleblower tool* A new tool to make it easier for individuals to alert the Commission about secret cartels and other antitrust violations while maintaining their anonymity has been launched by the European Commission today. Individuals can now (...)

The EU Commission introduces a new tool to encourage individuals to disclose anticompetitive conduct on an anonymous basis
Jones Day (Brussels)
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Jones Day (London)
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Jones Day (Brussels)
In Short The Situation: The European Commission has launched a new tool that will allow individuals to anonymously report anticompetitive conduct for the first time. The Impact: The Commission’s new access to anonymous inside information could increase the risk of exposure for companies (...)

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