May 2012

Anticompetitive practices

The Spanish Competition Authority fines two associations of press photographers for minimum fee scale (ANIGP-TV, UPIFC SINDICAT DE LA IMATGE)
Van Bael & Bellis (Brussels)
The Spanish Competition Authority (“CNC”) has recently fined the Asociación Nacional de Informadores Gráficos de Prensa y Televisión (“ANIGP-TV”) and the Unió de Professionals de la Imatge i la Fotografia de Catalunya Sindicat de la Imatge (“UPIFC SINDICAT DE LA IMATGE”) for recommending a minimum (...)

The Finnish Supreme Administrative Court confirms the Market Court’s decision to fine wholesalers of car spare parts over € 1 M for operating a price cartel (Oy Arwidson Ab, HL Group Oy, Oy Kaha Ab, Koivunen Oy and Örum Oy Ab)
Roschier (Helsinki)
On 31 May 2012, the Finnish Supreme Administrative Court handed down a judgment confirming the Finnish Market Court’s 2009 judgment finding that five wholesalers of car spare parts - Oy Arwidson Ab, HL Group Oy, Oy Kaha Ab, Koivunen Oy and Örum Oy Ab - had operated an illegal price cartel for (...)

The Finnish Supreme Administrative Court upholds the Market Court decision in automobile spare part cartel case (HL Group, Kaha, Koivunen, Örum)
European Commission (Brussels)
Finland: The Supreme Administrative Court upholds Market Court’s Decision in Automobile Spare Part Cartel Case* On 31 May 2012, the Supreme Administrative Court (Supreme Court) dismissed the appeals lodged against the Market Court’s decision of 2009 imposing fines totaling over € 1 000 000 on (...)

The Italian Competition Authority fines three operators in the Southern Italian electric market for undertaking a concerted practice aimed at sharing the market for certain dispatch services (Repower Italy Dispatch Price)
Economisti Associati
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University Luiss Guido Carli - GRIF (Rome)
Three electricity generators active in the Southern Italian area - Repower Italia S.p.A., EGL Italia S.p.A. and Tirreno Power S.p.A. - have been sanctioned by the Autorità Garante della Concorrenza e del Mercato (Italian Competition Authority - ICA) for undertaking a concerted practice in (...)

The Netherlands Competition Authority fines three bell pepper grower cooperatives and sales organizations for a price-fixing cartel (UWG, Rainbow, ZON)
European Commission (Brussels)
The Netherlands: The Competition Authority fines Bell Pepper Growers’ Cooperatives and Sales Organizations* On 25 May 2012, the Netherlands Competition Authority (NMa) issued decisions imposing fines on three bell pepper grower cooperatives and sales organizations, for their participation in a (...)

The Netherlands Competition Authority fines five onion producers for their participation in cartel agreements (TOP, VECO, CROP, Thopol, Promofin)
European Commission (Brussels)
The Netherlands: The Competition Authority fines Silverskin Onions Cartel* On 25 May 2012, the Netherlands Competition Authority (NMa) imposed fines of more than € 9 000 000 on five growers and processors of silverskin onions for their participation in cartel agreements concerning the maximum (...)

The EU General Court rules on multilateral interchange fees going through the intricacies of art. 101(3) (MasterCard)
Garrigues (Brussels)
Case T-111/08, Mastercard. A priceless Art. 101(3) assessment* A while ago we wrote a post on The Slow Death of Article 101(3) TFEU, where we said that in recent European Commission, practice, only once the challenged agreement was not deemed to be a restriction by “object”, and that only in (...)

The EU General Court fully upholds the Commission’s decision on multilateral interchange fees (MasterCard)
European Commission (Brussels)
European Courts: Judgment in MasterCard Case upholds Commission’s Decision* In its judgment of 24 May 2012 in case T-111/08, the General Court (the Court) fully upheld the Commission’s decision prohibiting MasterCard’s multilateral interchange fees (MIFs) that apply to cross-border transactions (...)

The Hubei Price Bureau punishes collusion to increase prices by local soybean product manufacturers and real estate agencies (Soybean product manufacturers in Shiyan city and Real Estate Agencies of Tongcheng County)
China Competition Bulletin (Beijing)
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China Competition Bulletin (Beijing)
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Institute of American Studies
On 22 May 2012, the Hubei Price Bureau held a press conference and disclosed that it had recently investigated and handled nine cases involving illegal pricing behaviour. In February 2011, soybean product manufacturers in Shiyan city had colluded through meetings to collectively cease (...)

A Chinese Intermediate Court dismisses allegations of vertical price-fixing against medical equipments company (Johnson & Johnson)
Institute of American Studies
The Shanghai Court’s Position on Resale Price Maintenance in the J&J Vertical Price-Fixing Litigation* On 18 May 2012, the Shanghai No. 1 Intermediate People’s Court (‘Shanghai Court’) dismissed allegations that Johnson & Johnson Medical (China) Ltd. and its Shanghai branch had set a (...)

The Lithuanian Supreme Administrative Court upholds NCA’s decision on anticompetitive agreements in the orthopaedic products sector (Idemus, Ortopagalba, Ortopedijos centras)
European Commission (Brussels)
Lithuania: The Supreme Administrative Court upholds Competition Authority’s Decision in Orthopaedic Products Case* On 17 May 2012, the Supreme Administrative Court of Lithuania (the Supreme Court) definitively upheld the decision of the Competition Council of the Republic of Lithuania (CC) of (...)

The Portuguese Supreme Court broadly interprets the de minimis principle in beer distribution private enforcement case
Eduardo Paz Ferreira & Associados
On the 17th May 2012, the Portuguese Supreme Court of Justice (STJ) dismissed a competition law-based defense in the framework of a dispute between a beer supplier and a retailer who failed to comply with exclusivity and minimum purchase obligations. The case stands out as one more in a number (...)

The Competition Commission of India validates input prices fixing by state-owned oil marketing companies and oligopsony granted under state’s policies (Indian Oil, Bharat Petroleum, Hindustan Petroleum)
"Though the law cannot hinder people of the same trade from sometimes assembling together, it ought to do nothing to facilitate such assemblies; much less to render them necessary" A. BACKGROUND On May 9th, 2012, the Competition Commission of India cleared three Public Sector Undertakings (...)

The New York Appellate Court rejects NY Attorney General’s challenge of alleged minimum resale price maintenance (RPM) scheme, holding that New York state statute does not render RPM agreements illegal per se and that restrictions that merely relate to minimum advertised prices do not constitute RPM agreements (Tempur-Pedic)
McDermott Will & Emery (Washington)
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McDermott Will & Emery (Chicago)
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McDermott Will & Emery (Chicago)
A recent New York state appeals court decision highlights the need for suppliers to continue exercising caution when adopting and implementing a resale price maintenance policy. On May 8, 2012, the Appellate Division of the New York Supreme Court affirmed a lower court’s decision that (...)

The Swiss Competition Commission fines car manufacturer for preventing parallel imports by prohibiting its authorised dealers within the EEA from selling new cars to customers located in Switzerland (BMW)
Kobel Attorney
Introduction On May 7, 2012, the Swiss Competition Commission made the most striking of a series of decisions regarding vertical restraints leading to the condemnation of BMW to the payment of a fine of CHF 156’868’150, that is approximately € 130’000’000. The case is about the refusal by BMW (...)

The French Competition Authority fines 10 producer organisations and 7 trade associations for minimum price fixing in the endive production and marketing sector
Herbert Smith Freehills (Paris)
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In a decision dated 6 March 2012, the French Competition Authority (hereinafter, the "FCA") fined 10 organisations of producers and 7 trade associations for a series of practices that aimed at maintaining a minimum selling price of endives sold between 1998 and 2012. This finding of (...)

The Kansas Supreme Court holds that the district judge erred in his demand for proof of a "concrete injury" in the price fixing of women’s accessories (O’Brien / Leegin Creative Leather Prods)
Sheppard Mullin (San Francisco)
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Sheppard Mullin (Los Angeles)
Kansas Supreme Court Declares “Rule of Reason” Inapplicable to Kansas Antitrust Law; Legislature May Have a Different Idea* In Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877 (2007), the U.S. Supreme Court expressly overruled the categorical ban on vertical price fixing (...)

The US Kansas Supreme Court holds resale price maintenance is per se illegal under state law, but ruling subsequently overturned by state legislature (O’Brien / Leegin Creative Leather Products)
McDermott Will & Emery (Washington)
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McDermott Will & Emery (Washington)
The Kansas Supreme Court recently determined resale price maintenance is per se illegal under state law, becoming the latest state to reject the rule of reason standard mandated by the Supreme Court of the United States. The decision serves as a reminder that although a supplier’s pricing (...)

The Kansas Supreme Court holds that resale price maintenance, whether purely vertical or in a dual distribution setting, is per se illegal and rejects applicability of federal rule of reason analysis to claims brought under Kansas antitrust law (O’Brien / Leegin Creative Leather Products)
Crowell & Moring (Washington)
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Crowell & Moring (Irvine)
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Crowell & Moring (Washington)
UPDATE NOTE: On April 16, 2013, the Kansas legislature reversed the decision discussed below, and adopted a "reasonableness" standard for analyzing vertical price agreements. On May 4, 2012, Kansas joined the growing trend among states to limit the distribution flexibility that had been (...)

The Kansas Supreme Court condemns vertical price fixing agreements as per se illegal under the Kansas Restraint of Trade Act (O’Brien / Leegin Creative Leather Products)
Wolters Kluwer (Riverwoods)
Kansas Supreme Court Condemns Vertical Price Fixing Agreements as Per Se Illegal* Earlier this month, the Kansas Supreme Court ruled that the reasonableness of a vertical price fixing agreement is not to be considered when determining whether such an agreement violates the Kansas Restraint of (...)

The EU Court of Justice dismisses appeal in Spanish raw tobacco cartel (WWTE)
Van Bael & Bellis (Brussels)
In October 2012, the European Court of Justice (“ECJ”) published an order of 3 May 2012, dismissing an appeal by World Wide Tobacco España (“WWTE”) against an earlier EU General Court (“GC”) ruling in the Spanish raw tobacco cartel case. In October 2004, the European Commission had fined (...)

The Bulgarian Competition Authority sanctions a medical professional association for adoption of minimum tariffs for medical appointments (Bulgarian Medical Association)
University of Technology (Tallinn)
On 3 May 2012 the Bulgarian Competition Authority (CPC) prosecuted the Bulgarian Medical Association (BLS) for the adoption of minimum tariffs for medical appointments applied towards patients outside the national health insurance system. For the established infringement of the national (...)

The French Supreme Court rules on selective distribution networks and outside-network sales made on online auction website (eBay)
Vogel & Vogel
Four perfume brands have filed a legal action against the world’s number-one online auction site, eBay: they accuse eBay of allowing on its sites the sale by non-authorized third parties of products covered by a selective distribution channel. The judge found that eBay, a site bringing together (...)

Unilateral Practices

The Brussels Court of Appeal rules that the right to have access to a file implies the right to obtain a copy of the documents in that file (Belgacom, KPN Group Belgium, Mobistar)
Ravago group
In its judgment of 29 May 2012 the Court of Appeal of Brussels decided that a party that was granted access to the procedural file of the national competition authority within the framework of an appeal procedure, should also have the right to obtain a copy of the documents that are part of (...)

The Brussels Court of Appeal finds that a distribution company delivering and collecting newspapers and magazines abused its dominant position by charging excessive and discriminatory prices (AMP)
Van Bael & Bellis (Brussels)
In a judgment of 29 May 2012, the Brussels Court of Appeal held that AMP, a distribution company delivering and collecting newspapers and magazines for retail shops, had abused its dominant position by increasing the fixed minimum fee for its services without any economic justification. (...)

The Bulgarian Competition Authority approves commitments in a case of alleged abuse of dominant position (MPT/SP Dina)
Djingov, Gouginski, Kyutchukov & Velichkov
By a decision of 22 May 2012 the Commission on Protection of Competition (the “CPC”) approved proposal for commitments (the “Commitments Decision”) by a bus station operator in the framework of an investigation for abuse of dominant position by way of application of different provisions to (...)

The President of the Belgian Competition Authority adopts interim measures on a warehouse keeper in port of Antwerp (Port Real Estate)
European Commission (Brussels)
Belgium: Interim Measures in Warehouse Coffee Case in Port of Antwerp* On 22 May 2012, the President of the Competition Council of Belgium ordered Port Real Estate (PRE), a warehouse keeper storing inter alia coffee in Antwerp, to maintain a minimum volume of loading out of Robusta coffee (...)

The EU Competition Commissioner makes a statement on the progress of the on-going investigation into the alleged abuse of dominance in the search engine market (Google)
Stanford University - Stanford Law School
Almunia offers Google settlement talks* Last 21 may 2012, Competition Commissioner Joaquin Almunia made a statement on the progress of the on-going investigation into Google’s alleged abuse of dominance in the search engine market, which the Commission was investigating since November 2010 (see (...)

The European Commission invites leading web search engine to submit remedies to address alleged abuse of dominance concerns (Google)
Van Bael & Bellis (Brussels)
On 21 May 2012, the Commission issued a press statement inviting Google to submit remedies to address four concerns it identified pursuant to the antitrust investigation it launched in November 2010 into a potential abuse by Google of its dominant market position. The Commission noted (...)

The First Instance Administrative Tribunal of Lazio quashes the decision of the Competition Authority which had found an alleged abuse of dominant position by a crop science compagnie consisting in the refusal to grant access to certain essential studies protected by IP rights (Bayer CropScience)
Legance - Studio Legale Associato
The AGCM’ decision By decision n. 22558 of 28 June 2008, the Italian Antitrust Authority (Autorità Garante della Concorrenza e del Mercato, hereinafter "AGCM") ascertained an alleged abuse of dominant position by Bayer CropScience AG and its Italian subsidiary Bayer CropScience S.r.l. (...)

An Italian administrative Court addresses the extent to which an allegedly dominant company in the production of certain plant protection products shall be bound to grant or deny competitors access to scientific studies and data thanks to which it could obtain its marketing authorizations (Bayer Cropscience)
Gatti Pavesi Bianchi
With its judgment of May 16th, 2012 the Tribunale Amministrativo del Lazio (i.e. the lower Italian administrative Court which adjudicates appeals against decisions issued by the Autorità Garante della Concorrenza e del Mercato, "IAA") addressed the extent to which an allegedly dominant company (...)

The German Competition Authority clarifies that examination of a company’s pricing elements can be sole legal test in determining excessive pricing (Water supplier)
Van Bael & Bellis (Brussels)
By decision of 15 May 2012, recently published, the German Federal Court of Justice (“the Court”) annulled a decision of the Higher Regional Court of Stuttgart (“HRCS”), by which the latter had annulled a decision of the federal cartel office (“FCO”) finding that a dominant water supplier had (...)

Advocate General Mazak issues his opinion recommending dismissing appeal against pharma company’s abuse of dominance (AstraZeneca)
Baker McKenzie (Brussels)
AstraZeneca v Commission, Advocate-General Mazak’s Opinion of 15 May 2012* On 15 May 2012, Advocate-General Mazák delivered his long awaited Opinion to the European Court of Justice in the long-running AstraZeneca litigation. Practitioners hoping for an opinion that tempered some of the more (...)

A US Court of Appeals reiterates that it is possible to monopolize a technology market (Apple / Samsung)
Orrick, Herrington & Sutcliffe (San Francisco)
Northern District of California Reiterates That You Can Monopolize a Technology Market* In Apple, Inc. v. Samsung Electronics Co., Ltd., Case No. 11-CV-01846 (N.D. Cal. May 14, 2012) (Koh, J.), a patent case, the court refused to dismiss Apple’s counterclaims, including a Sherman Act § 2 (...)

The Macedonian High Administrative Court upholds the NCA’s infringement decision finding an abuse of dominant position on the funeral services market (JPKD Komunalec Strumica)
University of Technology (Tallinn)
On 9 May 2012 the Macedonian High Administrative Court (VUS) upheld, as a second instance court, the infringement decision of the Macedonian Competition Authority (KZK) against the municipal undertaking JPKD Komunalec Strumica (Komunalec) for the abuse of dominant position on the funeral (...)

The Macedonian High Administrative Court upholds the NCA’s infringement decision concerning an abuse of dominant position on the funeral services market (JPKD Komunalec Strumica)
University of Technology (Tallinn)
On 9 May 2012 the Macedonian High Administrative Court (VUS) upheld, as a second instance court, the infringement decision of the Macedonian Competition Authority (KZK) against the municipal undertaking JPKD Komunalec Strumica (Komunalec) for the abuse of dominant position on the funeral (...)

The EU Commission sends statement of objections to telecom operators regarding their behaviour on several wholesale broadband markets in Slovakia (Slovak Telekom, Deutsche Telekom)
Van Bael & Bellis (Brussels)
On 8 May 2012, the European Commission announced that it had issued a statement of objections to Slovak Telekom a.s. and its parent company, Deutsche Telekom AG, regarding their behaviour on several wholesale broadband markets in Slovakia. According to the Commission’s press release, the (...)

The Mexican Competition Commission accepts commitments and revokes monopolization fine imposed on telecommunications company (Telcel)
Jones Day (Mexico)
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Jones Day (Mexico)
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Jones Day (Mexico)
The Mexican Federal Competition Commission ("CFC") has revoked a fine of approximately US $1 billion that it had imposed on Mexican telecommunications company Radiomóvil Dipsa, S.A de C.V. (Telcel), a subsidiary of América Móvil, owned by Mexican billionaire Carlos Slim.The revocation resulted (...)

The Swedish Competition Authority closes investigation on alleged abuse of dominant position by the incumbent postal operator (Posten)
European Commission (Brussels)
Sweden: The Competition Authority closes Investigation of alleged Abuse by Posten* On 3 May 2012, the Swedish Competition Authority (SCA) terminated its investigation of two rebate schemes applied by Posten Meddelande AB (Posten), which holds a dominant position on the Swedish postal market. (...)

The Mexican Federal Competition Commission annuls abuse of dominance fine imposed on telecoms giant (America Movil)
Mircea & Partners (Bucharest)
America Movil abuse of dominance case seems to be a”happy-end” story but not for everybody* Everybody at America Movil (”AM”) – and especially its owner, Mr.Carlos Slim – should have welcomed with a sense of relief the (somehow unexpected) turn in the saga which started last year when the Mexican (...)

Mergers

The Brazilian CADE enforces the new competition act: merger review developments
Magalhães Nery e Dias (Sao Paulo)
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Magalhães Nery e Dias (Sao Paulo)
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Magalhães Nery e Dias (Sao Paulo)
Introduction It has been almost one year since, in May 29, 2012, a new Competition Act (Law 12.529/11) came into force in Brazil, radically altering the country’s antitrust framework. The purpose of the long-awaited new law was to allow the competition regulator (the Administrative Council of (...)

The Brazilian Parliament adopts new merger law, with increase in filing thresholds and new merger regulations
Milbank, Tweed, Hadley & McCloy (New York)
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Jones Day (Sao Paulo)
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Jones Day (New York)
On May 29, 2012, Brazil’s New Merger Law entered into force and the Administrative Council for Economic Defense ("CADE") issued Merger Regulations that further define what transactions must be reported and what filing procedures followed in Brazil’s new pre-merger control regime. On May 31, (...)

The UK Competition Appeal Tribunal rejects appeal against merger remedies in the healthcare waste services industry (Stericycle/Ecowaste Southwest)
St John’s Chambers
UPDATE: Stericycle/Ecowaste merger: Competition Appeal Tribunal rejects appeal against remedies* An earlier post considered the Competition Commission’s (“CC”) prohibition of Stericycle’s completed acquisition of a competitor, Ecowaste Southwest. Having found that the merger would have resulted in (...)

The UK Court of Appeal addresses the issue of the duty of sincere cooperation between national competition authorities and the European institutions in the context of merger control (Ryanair/Aer Lingus)
UK Competition and Markets Authority (CMA) (London)
Summary In 2012 the low-cost company Ryanair flew twice to the Court of Appeal in the UK, in an attempt to further explore the duty of sincere cooperation between national competition authorities and the European institutions. Ryanair did not get good value for money: at both occasions it was (...)

The Chinese MOFCOM approves acquisition subject to what some observers believe were over-cautious conditions linked to a lack of experience and institutional resources (Google / Motorola Mobility)
Sheppard Mullin (Beijing)
China’s MOFCOM Grapples With Open Source Issues In Google-Motorola Deal* This past February the US Department of Justice (“DOJ”) and European Commission (“Commission”) cleared Google Inc.’s acquisition of Motorola Mobility Holdings Inc. without any conditions. In contrast, on May 19, 2012 the (...)

The Chinese MOFCOM again uniquely imposes AML conditions on a transaction in the smartphone sector (Google / Motorola Mobility)
Ingram Yuzek Gainen Carroll & Bertolotti
The notification for Google‘s acquisition of Motorola Mobility was submitted to China’s Ministry of Commerce on 30 September 2011. It was ultimately accepted on 21 November 2011 by MOFCOM after supplementation. At the expiration of the Phase III, or extended Phase II, period, on 19 May 2012, (...)

The Chinese MOFCOM approves an acquisition subject to conditions in the IT industry (Google / Motorola Mobility)
Jones Day (Beijing)
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Gibson Dunn (Hong Kong)
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Jones Day (Beijing)
On 19 May 2012, the PRC Ministry of Commerce ("MOFCOM") approved the acquisition by Google Inc. of Motorola Mobility, Inc. under the Chinese Anti-Monopoly Law ("AML"), but imposed conditions to require that Google continue to license the Android operating system and the patents acquired from (...)

The Chinese MOFCOM conditionally clears an acquisition in the smartphone and smartphone operating system sectors (Google / Motorola Mobility)
Institute of American Studies
China’s Ministry of Commerce Conditionally Clears the Google/Motorola Mobility Deal* On 19 May 2012, China’s Ministry of Commerce (‘MOFCOM’) announced its conditional clearance decision on the acquisition of Motorola Mobility by Google, which removed the last hurdle for the USD12.5 billion (...)

The Polish competition court upholds the prohibition of a merger in the energy sector, confirms that conditions can be granted also by the court, defines when the “rule of reason” can be applicable and consequently confirms a non-primary meaning of procedural omissions of the competition authority (PGE)
Markiewicz & Sroczynski
I. The Facts Polska Grupa Energetyczna S.A. with its seat in Warsaw (“PGE”) is one of the four leading energy groups in Poland, the remaining three being Enea, Energa and Tauron. PGE intended to take control over Energa, through a conditional acquisition from the Minister of the State Treasury on (...)

The Latvian Competition Council conditionally approves a merger on the market for TV broadcasting (MTG & Latvijas Neatkarīgā)
Competition Council of Latvia
Binding Obligations set to Merger of Broadcasting Companies* On 11 May 2012 the Competition Council (CC) adopted a decision to approve proposed merger of MTG Broadcasting AB (MTG) and AS Latvijas Neatkarīgā Televīzija – owners of the two leading private TV channels with Latvian language content (...)

The US DOJ reaffirms the significance of pre-existing documents in HSR merger review (Hyosung)
WilmerHale (Washington)
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WilmerHale (Washington)
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Kirkland & Ellis (Washington)
Department of Justice to Merging Parties: Altering 4(c) Documents May Land You in Jail* A senior executive of a Korean manufacturer of Automated Teller Machines recently agreed to serve a five-month prison sentence in the United States for tampering with business documents during the (...)

The French Competition Authority clears a merger in the food retail sector (Carrefour / Guyenne et Gascogne)
French Competition Authority (Paris)
Press Release published on the official website of the French Competition Authority. The Autorité de la concurrence clears the takeover by Carrefour of its franchisee Guyenne et Gascogne, which operates thirty-four food superstores in the south-west of France*. The Autorité de la concurrence (...)

The Hungarian Competition Office approves an acquisition in the food sector and rules on the interim control over the target company before its approval (Bonduelle Central Europe/Kelet-Food)
Philip Morris
Background Bonduelle Central Europe Zöldségfeldolgozó Kft. (“BCE”) as the sole tenderer for the purchase of Kelet-Food 2000 Élelmiszeripari Kft. “f.a.” (“Kelet-Food”) including certain assets (factory buildings, equipment and other assets, etc) and the 100% business share of Corn Food Kukorica (...)

The French Competition Authority clears a merger in the food retail sector in the urban area of Beauvais (Intermarché)
French Competition Authority (Paris)
Press Release published on the official website of the French Competition Authority. The Autorité de la concurrence clears the acquisition, subject to commitments, by the Intermarché group of several independent retail outlets in the urban area of Beauvais under the brand name Intermarché*. On (...)

The French Competition Authority clears a merger in the food retail sector in Martinique (Parfait / Lancry)
French Competition Authority (Paris)
Press Release published on the official website of the French Competition Authority. The Autorité de la concurrence clears, subject to commitments, the acquisition in Martinique of two hypermarkets by the Parfait group*. The Autorité de la concurrence has issued a decision clearing, subject to (...)

The Bulgarian Supreme Court confirms that the acquisition of assets in the course of a judicial sale constituted a concentration in the meaning of the merger control rules (Oktopod Invest/Slunchev Dar)
Kinstellar (Sofia)
The Bulgarian Supreme Administrative Court (the “SAC”) alleviated any doubts as to the qualification of asset purchases at judicial sales as a concentration in the meaning of merger control rules. The SAC upheld a ruling of the Bulgarian Commission for the Protection of Competition that such (...)

The US DoJ announces that an executive of a South Korean company agreed to plead guilty to obstruction of justice charges and to serve five months in prison for altering documents filed with the DOJ and the FTC in connection with a proposed merger
Sheppard Mullin (Washington)
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Sheppard Mullin (Washington)
Tampering With Documents In Connection With Hart-Scott-Rodino Merger Submissions Can Land You In Jail!* One does not usually associate the possibility of criminal penalties with the Hart-Scott-Rodino Act premerger review process. However, on May 3, 2012, the U.S. Department of Justice ("DOJ") (...)

The U.S. DOJ prosecutes obstruction of justice by a South Korean executive in merger investigation (Hyosung Corporation)
Jones Day (Washington)
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Jones Day (Washington)
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A plea agreement entered into last week with the U.S. Department of Justice Antitrust Division (DOJ) provides a sobering reminder of the serious consequence of obstruction of justice, and highlights the fact that such obstruction issues can arise even in connection with seemingly routine merger (...)

The UK Competition Commission finds a substantial lessening of competition (SLC) based on coordinated effects (Anglo American / Lafarge)
Herbert Smith Freehills (Brussels)
On 1 May 2012 the Competition Commission (CC) published its decision on the anticipated joint venture between Anglo American PLC and Lafarge SA in the market for construction materials. The CC concluded that the proposed joint venture would give rise to a substantial lessening of competition in (...)

The UK Competition Commission finds that the joint venture between two of the largest suppliers of construction materials in the UK would give rise to substantial lessening of competition based on coordinated effects (Anglo American / Lafarge)
Herbert Smith Freehills (Brussels)
On 1 May 2012 the Competition Commission (CC) published its decision on the anticipated joint venture between Anglo American PLC and Lafarge SA in the market for construction materials. The CC concluded that the proposed joint venture would give rise to a substantial lessening of competition in (...)

State Aid

The EU Commission adopts a framework under which Member states may compensate certain electro-intensive users for part of the higher electricity costs expected to result from a tightening of the ETS
Bird & Bird (Dusseldorf)
European Commission: State Aid Rules for ETS Post 2012 Electricity Costs and for CCS Ready Power Plants* The European Commission has adopted a framework under which Member states may compensate certain electro-intensive users for part of the higher electricity costs expected to result from a (...)

The EU Commission issues guidelines on state aid for emission trading
Van Bael & Bellis (Brussels)
On 22 May 2012, the European Commission published its long-awaited Communication setting out guidelines on certain state aid measures in the context of the greenhouse gas emission allowance trading scheme (“ETS”) post-2012. The Communication allows national support to companies in a (...)

Procedures

The UK OFT provisionally decides to refer private motor insurance market to Competition Commission
European Commission (Brussels)
United Kingdom: The Office of Fair Trading provisionally decides to refer Private Motor Insurance Market to Competition Commission* On 31 May 2012, the Office of Fair Trading (OFT) provisionally decided to refer the private motor insurance market to the Competition Commission after it found (...)

The Danish Competition Authority publishes a report on the culture of discounts and advertising campaigns in the grocery market
European Commission (Brussels)
Denmark: Discount Culture in Danish Grocery Market* On 31 May 2012, the Danish Competition and Consumer Authority (DCCA) published a report on the culture of discounts and advertising campaigns in the Danish grocery market. The report investigates the effect of unaddressed advertising material (...)

The UK OFT calls for greater patient choice and competition in dentistry market
European Commission (Brussels)
United Kingdom: The Office of Fair Trading calls for Greater Patient Choice and Competition in Dentistry Market* On 29 May 2012, the Office of Fair Trading (OFT) called for major changes to the £ 5 730 000 000 (€ 7 160 000 000) UK dentistry market after a market study found that it is not always (...)

The Romanian Competition Authority releases its 2011 annual report
University of Technology (Tallinn)
On 25 May 2012 the Romanian Competition Authority (CC) has released for public consultation its 2011 annual report. Present note shall focus exclusively on competition enforcement activities carried out by the CC in 2011 without addressing its activities related to the state aids control, (...)

The President of the Belgian Competition Council declares a request for preliminary measures against abusive storage conditions, admissible and founded (Armajaro / Port Real)
Philippe & Partners (Brussels)
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Baker McKenzie (Brussels)
I. The Parties Armajaro Trading Limited (hereinafter “Armajaro”) is active in agricultural products trading (such as coffee, cacao and sugar). Amajaro’s activities include the trading of Liffe Certified Robusta Coffee on the NYSE Liffe Exchange in London (hereinafter “NYSE Liffe Exchange”). Port (...)

The EU General Court confirms that leniency documents produced under the Commission’s leniency program are not exempt from disclosure in civil actions (Energie Baden-Württemberg)
Morgan Lewis (London)
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Squire Patton Boggs (London)
A recent ruling from the EU General Court ("General Court") in EnBW Energie Baden-Württemberg AG v Commission confirms that leniency documents produced under the European Commission’s ("Commission") leniency program are not exempt from disclosure in civil actions in the EU. Earlier this year, the (...)

The Slovenian Supreme Court refuses to grant to a competitor a standing in a procedure reviewing the authority’s decision (Telekom Slovenije / Si.mobil)
Criterion Economics
On May 22, 2012 the Slovenian Supreme Court (Supreme court) rejected to grant to Si.mobil, the applicant, standing in a judicial proceeding reviewing the Slovenian competition authority’s (authority) decision in the case against Telekom Slovenije d.d. (previously Mobitel d.d., a subsidiary and (...)

The Canadian Competition Tribunal refuses to grant damages to company deliberately and flagrantly breaching interim order in a refusal to deal case in the chicken industry (Nadeau / Wetsco)
Affleck Greene McMurtry
Injunction chickens come home to roost* The Competition Tribunal has the power to order an inquiry into damages arising from an interim order granted by the Tribunal, but can refuse to order damages where special circumstances exist. Deliberate and flagrant breach of the interim order will (...)

The Italian Competition Authority launches a public consultation on the new draft guidelines on the commitment procedure
Bonelli Erede Pappalardo (Rome)
A few months after the appointment of its new President (Mr Giovanni Pitruzzella) on 29 November 2011, the Italian Competition Authority (“ICA”) launched a public consultation on new draft guidelines on the commitment procedure which will amend the notice of October 2006 adopted soon after the (...)

The US Southern District of New York denies motion to dismiss conspiracy claims (Electronic Books Antitrust Litigation)
Cohen Milstein (Washington)
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Cohen Milstein (New York)
In this widely-followed case, consumers of electronic books alleged that the defendants, five of the six biggest publishers and Apple, conspired to raise prices of e-books. The defendants allegedly hatched the conspiracy to stymie the low e-book prices that dominant retailer Amazon was then (...)

The Italian Competition Authority proposes a draft notice on new commitments procedure
European Commission (Brussels)
Italy: The Competition Authority proposes Draft Notice on new Commitments Procedure* On 15 May 2012, the Italian Competition Authority (ICA) decided to launch a public consultation on a draft Notice on the new procedure under Article 14-ter of the Antitrust Law (Law 10 October 1990, n. 287), (...)

The Finnish Government proposes to merge the Competition Authority and the Consumer Agency
European Commission (Brussels)
Finland: The Competition Authority and Consumer Agency are to merge* The Ministry of Employment and the Economy has proposed to merge the Finnish Competition Authority and the Consumer Agency into one joint agency which will begin operations on 1 January 2013. The National Consumer Research (...)

The Israeli Parliament adopts administrative financial sanctions for antitrust violations
University Bar-Ilan - Department of Economics
Israeli antitrust law is in upheaval, initiated by the antitrust authority and implemented through legislative amendments. These amendments, some enacted and some pending, expand the authority’s discretion and grant it new tools in administering the nation’s competition policy. First and foremost (...)

The Portuguese government implements a new competition act to revamp its competition regime
Computer and Communications Industry Association US (CCIA)
Portugal has adopted a New Competition Act that modernizes its competition regime by lining it up with the European Union (EU) regime. The New Act introduces various reforms, most notably: the modification of merger control thresholds, the refinement of the leniency program, the adoption of (...)

The Chinese Supreme Court issues its first judicial interpretations on anti-monopoly law suits
Pillsbury Winthrop Shaw Pittman (Shanghai)
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Pillsbury Winthrop Shaw Pittman (Beijing)
On May 3, 2012, the Supreme People’s Court of China finalized and issued the Regulations on Several Issues Concerning Application of Law in the Trial of Civil Cases Arising from Monopolistic Conducts (the “New Regulations”). These Regulations are China’s first judicial interpretation of (...)

The Chinese Supreme People’s Court sets framework for antitrust litigation
Jones Day (Beijing)
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Gibson Dunn (Hong Kong)
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Jones Day (Beijing)
The Chinese Supreme People’s Court ("SPC") has promulgated final Rules on Civil Litigation under the Anti-Monopoly Law ("AML") (the "Rules"), which will become effective on June 1, 2012. These Rules set out the framework for civil antitrust litigation in China. The implementation of these new (...)

Public sector

The Romanian Competition Authority organizes a seminar on fighting cartels in public procurement process
European Commission (Brussels)
Romania: Seminar on Fighting Cartels in Public Procurement Process* Further to the recommendation of the Report on the assessment of public procurement process in Romania (elaborated by Deloitte at the request of the European Commission - DG Regio), the Competition Council has organized on 31 (...)

The Italian Supreme Administrative Court holds that appointment of a lawyer for litigation is not subject to public procurement rules (Tonelli)
IUSE Istituto Universitario di Studi Europei
I. Introduction By judgement of 11 May 2012, the Consiglio di Stato (Italian Supreme Administrative Court, the «Court«), setting aside the decision of a lower court (Administrative Tribunal of the Lazio Region, the «Lower Administrative Court«), decided that the local government of the Provincia (...)

The EU Court of Justice establishes that public authorities can use fair trade criteria as criteria to award public supply contracts of products (Netherlands Max Havelaar)
ClientEarth (Bruxelles)
Fair-trade coffee and tea under the procurement directive* Can public authorities procure fair trade products, or are they debarred from specifically referring to the fair trade qualities of those products under the public procurement directive (directive 2004/18/EC)? This is one of the issues (...)

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