May 2006

Anticompetitive practices

The European Commission fines four undertakings a total of € 344.5 M for participating in an acrylic glass cartel (Arkema, ICI, Lucite, Quinn Barlo)
Hogan Lovells (London)
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European Commission - DG COMP (Brussels)
"Commission fines four undertakings a total of € 344.5 million forparticipating in an acrylic glass cartel"* On 31st May 2006 the European Commission imposed fines on Arkema (formerly Atofina), ICI,Lucite and Quinn Barlo (formerly Barlo) for their participation in a hard core cartel. These four (...)

The Italian Competition Authority starts an in depth investigation in the water management services market for alleged infringements of Art. 81 EC (Acea / Suez / Publiacqua)
Studio Legale DDPV
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Luciani Annalisa Sudio Legale
On the 31st of May 2006, the Italian Antitrust Authority (“Authority”) opened an in depth investigation against Publiacqua S.p.A. (“PBA”), Acea S.p.A. (“Acea”) and Suez Environnement S.a. (“Suez”) for alleged breach of Article 81(1) of the EC Treaty. PBA is a company which manages water services (...)

The Portuguese Competition Authority fines € 250,000 the Portuguese Professional Association of Doctors for an infringement of both Art. 81 EC and its national equivalent (Ordem dos Médicos)
London School of Economics
The Autoridade da Concorrência (hereinafter, “the NCA”) opened proceedings against the Professional Association of Doctors after taking the view that some of its professional rules were implemented so as to impose in practice maximum and minimum fees to its members. More precisely, Article 81 of (...)

The Hungarian Competition Office applies Art. 3. EC Reg. 1/2003 to a distribution network: Application of national competition rules may not lead to prohibition of agreements not prohibited under Art. 81 EC (British American Tobacco - BAT)
Hogan Lovells
Hungarian Competition Office (Gazdasági Versenyhivatal), 30 May 2006, British American Tobacco - BAT, Case n° Vj-94/2005 The Hungarian Competition Office (HCO) initiated an ex officio procedure to examine whether BAT’s Hungarian distribution network, involving 23 distributors, infringed the (...)

The Polish Competition Authority fines the pay-TV operator and a football association for exclusive broadcasting rights (Canal+/Polish Football Association)
Hogan Lovells (Warsaw)
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Adwokatura Polska
The President of the Office for Competition and Consumer Protection (the “OCCP”) imposed by decision dated 29 May 2006 (No. DOK2-410/2/05/SCH) fines of almost PLN 8 million (EUR 2 million) on the Polish Football Association (PZPN) and Canal+ (pay TV operator). The OCCP assessed that the (...)

The Polish NCA fines the national football association and a TV operator for an abusive preferential renewal clause in a broadcasting licence agreement (Canal+/Polish Football Association)
French National Research Agency (ANR)
President’s of the Office of Competition and Consumer Protection (Prezydent Urzedu Ochrony Konkurencji i Konsumentów), 29 May 2006, Decision n° DOK-49/06, concerning a preferential renewal clause contained in the licence agreement for broadcasting of football league matches concluded between (...)

The Spanish Competition Authority fines four large supermarket chains for concerted practices in their relationships with their beverages providers (FIAB/Alcampo)
European Court of Justice (Luxembourg)
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Garrigues
In a decision dated 22 May 2006 (“the Decision”), the Spanish Competition Authority (Tribunal de Defensa de la Competencia, hereinafter “TDC”) has found that four large supermarket chains, namely, Alcampo, Carrefour, El Corte Inglés and Mercadona, had infringed Article 1 (1) of the Spanish (...)

The Spanish Tribunal de Defensa de la Competencia fines the main food retailers € 75,000 for imposing uniform trading conditions on their suppliers of alcoholic beverages (FIAB)
London School of Economics
The Federación Española de Industrias de la Alimentación y Bebidas (hereinafter, “FIAB”) is an association of Spanish food and drinks producers. On 2 December 2002 FIAB brought a complaint before the Servicio de Defensa de la Competencia (“SDC”) against the four main Spanish food retailers for breach (...)

A Czech Court confirms that a regulation of a professional chamber which contains recommended minimal prices amounts to a prohibited decision by an association of undertakings, despite the fact that such regulations are expressly provided for by national legislation (CKAIT - Chartered Engineers)
Government of the Czech Republic
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European Court of Justice (Luxembourg)
The Regional Court in Brno has rejected the appeal against the decision of the Office for the Protection of Competition (the “Office”) in which the latter stated that a regulation on services and fees, adopted and published by the Czech Chamber of Chartered Engineers and Technicians of the (...)

The Lithuanian Supreme Administrative Court confirms the NCA’s decision sanctioning taxi companies for price fixing through concerted practice (Martono taksi)
Sorainen (Vilnius)
In a decision dated 11 May 2006, the Lithuanian Supreme Administrative Court (LSAC) upheld the decision of the Vilnius District Administrative Court (VDAC) from 19 September 2006 with some corrections in the calculation of fines and confirmed the original decision of Lithuanian Competition (...)

The Spanish Competition Tribunal fines € 5, 7 M the major film distributors for coordinating their commercial policy (Distribuidores Cine)
European Court of Justice (Luxembourg)
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Garrigues
On May 10, 2006, the film distributors Walt Disney/Buenavista, Sony/Columbia, Fox, United International Pictures and Warner Sogefilms (hereinafter “the majors”) were each fined €2.4 million by the Spanish Competition Tribunal (Tribunal de Defensa de la Competencia, “TDC”). The TDC ruled that (...)

The Spanish NCA fines the main association of film distributors € 900,000 for exchange of sensitive information - Hollywood majors’ subsidiaries in Spain are moreover fined € 2,400,000 for concerted practices in the distribution of films (Distribuidores Cine-FEECE)
London School of Economics
The Federación de Empresarios de Cine de España (hereinafter, “FEECE”) is an association of Spanish film exhibitors. In 2003, the FEECE brought a complaint before the Servicio de Defensa de la Competencia (“SD”) against the Spanish subsidiaries of Hollywood majors’ film distributors for (...)

The Latvian Competition Council fines € 242.000 price coordinating practices in the services sector (Advertising agencies)
Mittal Investments UK Ltd
Summary On 8 May 2006, the Latvian Competition Council (“Competition Council”) imposed a fine in the amount of LVL 170,000 (€ 242,000) on 12 advertising agencies in Latvia for engaging in exchange of information regarding their service prices. The facts In 2005, mass media in Latvia reported on (...)

The European Commission fines seven undertakings a total of € 388 M for participating in a cartel for hydrogen peroxide and perborate (Akzo Nobel / EKA Chemicals, Edison / Solvay Solexis, FMC Foret, Kemira, Snia, Solvay and Total / Arkema)
European Commission - DG COMP (Brussels)
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European Commission - DG COMP (Brussels)
"Commission fines seven undertakings a total of € 388 million for participating in a cartel for hydrogen peroxide and perborate"* On 3 May 2006 the Commission adopted a decision and imposed fines totalling € 388.128 million on seven producers of hydrogen peroxide (“HP”) and sodium perborate (...)

Unilateral Practices

The German NCA issues a statement of objections against regional lottery operators prohibiting market allocation and restrictions imposed on commercial brokers on the basis of both German and EC competition provisions (Lotto)
Freshfields Bruckhaus Deringer (Berlin)
On 30 May 2006, the German Federal Cartel Office (“FCO”) issued a statement of objections against regional lottery operators and their German association due to the alleged infringement of European and German competition law. These regional lottery operators are wholly owned and controlled by the (...)

The Polish Competition Authority condemns for the first time on the basis of both national competition law and Art. 82 EC the increase of certain telecommunications services charges by the incumbent (TP)
French National Research Agency (ANR)
The commented decision is the first decision by which the Polish Competition Authority condemned an entrepreneur for abusing its dominant position on the basis of the national and European competition law. It is thus the first Polish application of the obligation established by Article 3 (...)

The Lithuanian Court of Appeal reduces the amount of damages in the case of an abuse of dominant position by the former State-controlled company on the alcoholic beverages market (Stumbras)
Lithuanian Competition Council
On 26 May 2006 the Lithuanian Court of Appeal (“LCA”) issued a ruling ordering a reduction of the amount of damages to be paid by AB Stumbras (“Stumbras”) to one of its customers, UAB Siauliu tara (“Siauliu tara”). The ruling is the latest development of the case, the origins of which date back to (...)

The Maltese Commission for Fair Trading takes interim measures in order to suspend restrictive practices in the transmission and retransmission of leading sport events sector (Melita Cable)
In terms of Article 15 of Maltese Competition Act (Chapter 379 of Laws of Malta, hereinafter referred to as ‘MCA’), the Director of the Office for Fair Trading (hereinafter referred to as ‘Director’) requested the Commission for Fair Trading (hereinafter referred to as ‘Commission’) to take interim (...)

A Dutch Court dismisses a plea on excessive tariff rates under both Dutch competition law and Art. 82 EC (BAT/Chipnik, "Tobacco vending machines")
European Commission - DG HR
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Dutch Ministry of Security and Justice
British American Tobacco (hereafter “BAT”) produces and supplies tobacco products. It owns a large number of cigarette vending machines. Chipknip provides services in relation to banking chip cards. When equipped with specific chips, banking cards can be used as electronic wallets. In 1999, the (...)

The Czech Office for the Protection of Competition maintains that the refusal of access to a non-essential facility - a bus station - may amount to an abuse of dominant position (CSAD Liberec)
European Court of Justice (Luxembourg)
On 16 May, 2006, deciding on appeal lodged against a first-instance decision, the President of the Czech Office for the Protection of Competition has upheld the conclusion according to which CSAD Liberec (“CSAD”), the operator of the bus station in the Czech city of Liberec and of different bus (...)

The Slovak Antimonopoly Office fines 1 M € a railway cargo services operator for abusive commissions (Cargo Slovakia)
BUŽEK & TEREM
In May 2006, the Slovak Antimonopoly Office (“AMO”) published a decision of the second instance fining the railway cargo company Železnicná spolocnost’ Cargo Slovakia, a.s. (as a successor of former Železnicná spolocnost’, a.s., hereinafter as “ZS”) a total of SKK 37 million (approx. EUR 1 million) for (...)

The French supreme Court alleviates the standard of proof of actual or potential effects of an abusive price squeeze in the telecommunications sector (ETNA / France Telecom)
University Paris II Panthéon‑Assas
This interesting case raises the question of the standard of proof that the French competition council must comply with, in showing the actual or potential effects of an abuse of dominant position. FACTS In June 1999, a French association of new entrant telecommunications operators complained (...)

The French Supreme Court lowers the standard of proof for anticompetitive practices and quashes the Paris Court of Appeal judgment in the Ténor case, regarding calls from landlines to mobile phones (ETNA / France Telecom-SFR)
Freshfields Bruckhaus Deringer (Paris)
Following a referral by an association of telecom operators disputing the pricing policy of integrated operators (i.e. offering both landline and mobile phone services), the French Competition Council had, in its decision of 14th October 2004, found against France Télécom and SFR and fined them (...)

The French supreme Court holds that the fact that competitors have found alternative solutions to avoid detrimental effects of price squeezing of the telco incumbent is irrelevant to establish an abuse under Art. 82 EC (ETNA / France Telecom-SFR)
Kramer Levin Naftalis & Frankel (Paris)
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Eversheds Sutherland (Paris)
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Eversheds Sutherland (Paris)
Background When an individual makes a call from a landline to a mobile phone, the call is first directed through a landline network until interconnection with the mobile network. Then the landline operator is relayed by the mobile operator which directs the call to the addressee and (...)

The German Bundeskartellamt fines spice producers again for exclusivity clauses and other contractual agreements that could lead to factual exclusivity (Fuchs, Teuto)
Norton Rose Fulbright
In a decision dated 9 May 2006, the German Federal Cartel Office (“FCO”) has imposed a fine of EUR 250.000 against TEUTO Gewürzvertriebs GmbH (“TEUTO”), an undertaking belonging to the Fuchs Gewürze group, for violating a prohibition decision of the FCO dating back to July 2002. 1. Background The (...)

The Latvian Competition Council fines a press operator for abuse of dominant position in the press subscription and delivery markets (Latvijas Pasts)
Best Lawyers
Competition Council of the Republic of Latvia (Latvijas Republikas Konkurences Padome), 2 May 2006, On establishment of abuse and imposing of the legal duty and penalty, Competition Council of the Republic of Latvia v. State Joint Stock Company Latvijas Pasts, Case n° 1071/05/05/1 “On application (...)

Mergers

The French Minister of Economics conditionally clears a merger in the markets of free newspapers (SPIR / S3G)
University Paris II Panthéon‑Assas
The operation By a letter dated 31 May 2006, the French Minister of Economy, Finance, and Employment authorizes the merger between Spir Communication SA (Spir) and the Société des Gratuits de Guyenne et Gascogne SA (S3G). The merger created a joint-venture, “S3G Com”, running the publication of (...)

The Czech Competition Authority conditionally clears in phase II a merger in the non-alcoholic beverages sector (Podìbradka/Karlovarské minerální vody)
Clifford Chance (Prague)
The operation KMV acquired controlling share in Podìbradka. Merging parties were active in the area of production and sale of the packaged beverages (paras. 18 and 19). KMV as the acquiring party had a dominant position on the market of packaged natural water. As a result of the merger, KMV (...)

The European Commission conditionally approves an acquisition in the explosives and detonators industry (Orica/Dyno Nobel)
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European Commission - DG COMP (Brussels)
"Mergers — Main developments between 1 May and 31 August 2006"* In May the Commission approved the proposed acquisition by the Australian company Orica Ltd. (“Orica”) of most of the businesses of the Norwegian company Dyno Nobel ASA (“Dyno”) outside North America and Australia. The transaction had (...)

The European Commission conditionally clears a merger in the production and sale of smart cards (Axalto/Gemplus)
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European Commission - DG COMP (Brussels)
"Mergers — Main developments between 1 May and 31 August 2006"* In May the Commission conditionally approved the proposed acquisition by the Dutch company Axalto of Gemplus (Luxemburg). Both parties to the transaction are active worldwide in the production and sale of smart cards, such as SIM (...)

The Swedish Competition Authority clears an acquisition in the market for postal services, subject to a behavioural remedy (Posten/Strålfors)
Cederquist
The operation Posten AB is a state-owned company which provides postal services including mail and package deliveries (para. 2 The companies). Strålfors is a business to business company offering the printing and packaging of business, marketing and electronic communications services as well (...)

The Swedish Competition Authority clears a merger despite high market shares on several markets (Swedish Meats /Pärsons)
Vinge (Stockholm)
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Svea hovrätt (Swedish courts)
The concentration On 2 February 2006, the notification of the acquisition of sole control of SLP Pärsons AB (“SLP”) by Swedish Meats was completed. On 9 March 2006, the Swedish Competition Authority (the “SCA”) decided to initiate a special investigation of the concentration. Swedish Meats and SLP (...)

The Swiss Commission of Appeals for Competition Matters upholds an appeal to a decision of the NCA prohibiting the acquisition of common control of a free daily newspaper but made it subject to a remedy (Berner Zeitung/Tamedia)
Mazars (Brussels)
The operation Espace Media Group SA (EMG) through Berner Zeitung AG and Tamedia AG were planning to acquire through a joint undertaking stakes in the free daily newspaper ‘20 Minuten’. EMG is active in newspaper publishing, the electronic media sector, local radios and internet platforms. (...)

The Swiss Competition Appeals Commission annuls the Competition Authority’s decision having cleared a joint venture between 7 electricity companies conditionaly to free and non-discriminatory access to the network and prohibition of joint selling or producing (Swissgrid)
NERA (Berlin)
The operation On 7 March 2005, the Swiss Competition Commission (WEKO) cleared a joint venture between seven electricity companies for the transmission of electricity (Swissgrid AG). The seven companies are Aare-Tessin AG, BKW FMB Energie AG, Centralschweizerische Kraftwerke, (...)

State Aid

A French Court of Appeal applies the "Boiron" case law relating to the burden of proof and dismisses a claim by a pharmaceutical producer on the ground that it failed to show the existence of an advantage obtained from the exemption enjoyed by the wholesale distributors as set by the national regulation (Laboratoires Bristol Myers Squibb)
Sheppard Mullin (Brussels)
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European Court of Justice (Luxembourg)
Factual Background This case is one of a series of cases against pharmaceutical producers and wholesale distributors concerning a provision of the French Code de la santé publique (Public Health Code). This provision obliges pharmaceutical wholesaler to keep a permanent stock of medicinal (...)

A French Court of Appeal applies the "Casino" case of the ECJ to dismiss the action of wolesalers claiming the unlawfulness of the tax to support the trade and craft sectors (Agence Organic de recouvrement)
Sheppard Mullin (Brussels)
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European Court of Justice (Luxembourg)
Factual Background The appellants are exploiting several retail premises and were therefore subject to the tax on the support of the trade and craft industry ("TACA"). The TACA is a progressive tax borne directly by retail stores in France which have a sales area exceeding 400 m2 and an annual (...)

The English High Court of Justice in Northern Ireland rules that the granting of planning permission does not engage Art. 87.1 EC since there is no transfer, relinquishment or depletion of State resources (Bow Street Mall)
Freshfields Bruckhaus Deringer (Tokyo)
An application for judicial review challenging a planning decision made by the Department of the Environment. In relation to the State aid issues raised the Court held that the grant of planning permission did not engage article 87(1) EC since there was no transfer, relinquishment or depletion (...)

Procedures

A US Court of Appeals rules that the District Court did not err in dismissing the antitrust claims based on an alleged economic retaliation against a nurse after she rebuffed his sexual advances (Stark / Ear Nose & Throat Specialists of Northwestern Penn)
Sheppard Mullin (San Francisco)
Asserted Economic Retaliation Against Plaintiff Based on Plaintiff’s Rejection of the Defendant’s Sexual Advances Did Not Violate Section 1 or 2 of the Sherman Act* In an unpublished opinion, designated as "not precedential," the Third Circuit recently affirmed the District Court’s dismissal (...)

A French commercial court dismisses a private action claiming compensation for damages caused by antitrust violation, on the basis of a broad interpretation of the passing on defence (Vitamins cartel)
University Paris II Panthéon‑Assas
Nanterre Commercial Court (Tribunal de commerce de Nanterre), 11 May 2006, Arkopharma v. Roche and Hoffmann La Roche, n° RG 2004F02643 As compared to the situation in the US, it is well known that private actions are still highly infrequent in Europe generally and in France more specifically. (...)

The UK Competition Appeals Tribunal receives the first claim for damages based on abuse of dominant position (Healthcare at Home / Genzyme)
White & Case (London)
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White & Case (London)
Healthcare at Home Limited (“HH”) has brought a claim for damages before the Competition Appeals Tribunal (“CAT”) against Genzyme Limited (“GL”) pursuant to section 47A of the Competition Act 1998. This is the third claim for damages to have been brought before the CAT pursuant to section 47A of the (...)

The German Higher Regional Court clarifies new German rules on private enforcement of competition law (Cement cartel)
McDermott Will & Emery (Düsseldorf)
Background On 1 July 2005, major amendments to the German competition law (“GWB”) entered into force. Several of these amendments were the result of the German legislator’s intention to strengthen the private enforcement of competition law. One of the new provisions is Section 33(4) GWB. The (...)

The German Federal Cartel Office issues a revised notice on the immunity from and reduction of fines in cartel cases (Leniency Notice - “Bonusregelung”)
University College London
I. Overview The Federal Cartel Office (FCO) has issued a revised notice on the immunity from and reduction of fines in cartel cases. This notice has - effective from March 15, 2006 - replaced the preceding German leniency notice no. 68/2000 (cf.par. 25 of the new leniency notice). II. (...)

Regulatory

The UK Department of Trade and Industry and HM Treasury makes an assesment of the concurrent powers of the NCA and the sectoral regulators to enforce competition law (DTI/HM Treasury Report, May 2006)
Fréget - Tasso de Panafieu Avocats (Paris)
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Dirty Monty
The Purpose of the Study In May 2006, the UK government’s Department of Trade and Industry (the DTI) and HM Treasury produced a Report (the “Report”) on the concurrent competition powers possessed by the UK’s sectoral regulators [Office of Gas and Electricitys Markets (Ofgem), Office of (...)

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