May 2018

Anticompetitive practices

The Russian Competition Authority exposes a large cartel of medical products suppliers (RM Endovascula / Raymed Trading Group PVT / Slonika / Exomedic / Vascular / Balticamed / Life Medicine / Inmed)
Russian Federal Antimonopoly Service (Moscow)
FAS exposed a large cartel of medical products suppliers* Moscow OFAS exposed a cartel formed by “RM Endovascular” Ltd., “Raymed Trading Group PVT” Ltd., “SLONIKA” Ltd., “EXOMEDIC” Ltd., “VASCULAR” Ltd., “BALTICAMED” Ltd., “LIFE MEDICINE” Ltd. and “INMED” Ltd. The companies took part in 124 auctions for (...)

The Indian Competition Authority dismisses allegations of collusion between a cement dealers’ association and cement manufacturers due to lack of evidence (Ramco / Kerala Cement Dealers’ Association KCDA)
Vaish Associates, Advocates (New Delhi)
CCI closes investigation against Kerala cement dealers’ association and cement manufacturers* The CCI by its order dated May 24, 2018 has closed the investigation against Ramco Cements Ltd (‘Ramco’) and the Kerala Cement Dealers’ Association (‘KCDA’). The investigation by the Director-General (‘DG’) (...)

The French Competition Authority fines a professional syndicate of winemakers for an anticompetitive agreement (Syndicat général des vignerons réunis des Côtes du Rhône)
French Competition Authority (Paris)
The Autorité de la concurrence fines the Syndicat général des vignerons réunis des Côtes du Rhône (the professional syndicate of Côte du Rhône winemakers) for an anticompetitive agreement* Based on a report submitted by the French Directorate General for Competition Policy, Consumer Affairs and Fraud (...)

The EU Court of Justice rules that Article 101 TFEU does not apply to circumstances where two separate and competing tenders are submitted by entities controlled by the same parent company (Specializuotas transportas)
Orrick, Herrington & Sutcliffe (Paris)
Does the EU Court of Justice “Specializuotas transportas” case ring the death knell of the French derogation to intra-group immunity? In its judgment Šiaulių regiono atliekų tvarkymo centras and Ecoservice projektai UAB (Case C-531/16) rendered on May 17, 2018, the EU Court of Justice has ruled (...)

The Latvian Supreme Court decides that parent companies may be responsible for competition infringements of subsidiary companies (Moller Auto Baltic / Harald A.Moller / Heinz Wilke Autohandel)
Konkurences padome (Riga)
Court: parent companies may be responsible for competition infringements of subsidiary companies* On 17 May, the Supreme Court adopted the decision, pursuant to which it is stipulated in the competition law of Latvia that parent companies may bear joint responsibility for infringements of (...)

The EU Court of Justice confirms that related undertakings are not obliged to disclose links between them to the public contracting authority, and that they can submit non-concerted offers to the same bid (Šiauliai)
CMS Albiñana y Suárez de Lezo (Madrid)
In a preliminary ruling dated 17 May 2018, the European Court of Justice (“ECJ”) considered that related companies are not obliged to disclose links between them when submitting separate offers for public procurement contracts. However, the contracting authority will be obliged to verify that (...)

The Vilnius Regional Administrative Court confirms the decision of the Competition Authority according to which two Lithuanian construction companies restricted competition by entering into bidding consortia (PST / Irdaiva)
Lithuanian Competition Authority (Vilnius)
Vilnius Regional Administrative Court: Joint bidding by construction companies restricted competition* Vilnius Regional Administrative Court (the Court) upheld Competition Council‘s decision according to which two Lithuanian construction companies Panevėžio statybos trestas (PST) and Irdaiva (...)

The Spanish Competition Authority fines five companies and three of their executives for an information exchange to collude in tenders for the award of institutional advertising contracts (Carat España / Inteligencia y Media / Media by Design / Media Sapiens / Persuade Comunicación)
Gomez Acebo & Pombo (Brussels)
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Gomez Acebo & Pombo (Brussels)
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Gomez Acebo & Pombo (Brussels)
Five companies (Carat España SAU, Inteligencia y Media SA, Media by Design Spain SA, Media Sapiens Spain SL and Persuade Comunicación) have been sanctioned for a collusive behaviour consisting in the exchange of commercially sensitive information in order to share tenders in the Framework (...)

The Turkish Competition Board publishes a decision concerning resale prices and sales conditions of authorised dealers in the paint sector (Jotun Boya Sanayi / Ticaret AŞhad)
ELIG Gürkaynak (Istanbul)
Introduction On May 5 2018 the Competition Board published its reasoned decision of February 15 2018 (18- 05/74-40) following its preliminary investigation into allegations that Jotun Boya Sanayi ve Ticaret AŞhad violated Article 4 of Law 4054 on the Protection of Competition. The allegations (...)

The German Competition Authority fines potato and onion packaging companies for fixing prices (Böhmer / Kuhn)
German Competition Authority (Bonn)
Bundeskartellamt imposes fines totalling 13.2 million euros on potato and onion packaging companies* The Bundeskartellamt has imposed fines totalling 13.2 million euros on two potato and onion packaging companies for fixing prices in their supplies to the Metro group. The companies concerned (...)

The Spanish National Markets and Competition Commission fines five companies and three company executives for bid-rigging of public tenders for institutional advertising services (Agencias de Medios)
Callol, Coca & Asociados (Madrid)
On 7 May 2018, the NMCC imposed fines amounting to €7.12 million upon five companies: Carat España, S.A.U, Inteligencia y Media, S.A. (YMEDIA), Media By Design Spain, S.A. (MEDIA BY DESIGN), Media Sapiens Spain, S.L. and Persuadé Comunicación, S.A. and three of their managers or legal (...)

The EU Commission confirms that its officials carried out unannounced inspections in several Member States at the premises of metal packaging companies (Metal packaging sector)
Gomez Acebo & Pombo (Brussels)
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Gomez Acebo & Pombo (Brussels)
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Gomez Acebo & Pombo (Brussels)
On 24 April 2018, the European Commission carried out unannounced inspections at the premises of a number of companies active in metal packaging in several Member States. The Commission was accompanied by officials of the relevant national authorities. The investigation follows concerns about (...)

The Turkish Competition Board prohibits the publishing of price lists by two professional federations of translators and translation offices (TUÇEF / TURÇEF)
ELIG Gürkaynak (Istanbul)
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ELIG Gürkaynak (Istanbul)
This case summary includes an analysis of the Turkish Competition Board’s (“Board”) TUÇEF and TURÇEF decision (03.05.2018; 18-13/230-105). The Board reviewed the allegations put forward by Berkay Gökçe, a real person, against TURÇEF Yeminli Çevirmenlik Federasyonu (“TURÇEF”) and TUÇEF Uluslararası (...)

The Indian Competition Authority grants penalty reductions to 4 out of 6 members of a cartel guilty of bid rigging public tenders for setting up solid waste processing plants (Nagrik Chetna Manch / Fortified Security Solutions)
Vaish Associates, Advocates (New Delhi)
CCI passes its third leniency decision* The CCI by way of an order dated May 1, 2018 has issued its third leniency order in the case of Nagrik Chetna Manch v. Fortified Security Solutions and Ors. (Case 50 of 2015) in which it granted reduction in penalty to four out of the six leniency (...)

Unilateral Practices

The German Competition Authority considers that an abuse of dominance investigation is not justified in a case where a dominant airline company significantly increased prices on certain routes where it had a monopoly (Lufthansa)
German Competition Authority (Bonn)
Lufthansa tickets 25-30 per cent more expensive after Air Berlin insolvency – "Price increase does not justify initiation of abuse proceeding"* After the insolvency of Air Berlin, Lufthansa held a monopoly position for a few months on some German domestic routes. After receiving numerous (...)

The EU Commission accepts commitments to settle investigation into conduct affecting Central and Eastern European gas markets (Gazprom)
Van Bael & Bellis (Brussels)
On 24 May 2018, the Commission adopted a decision accepting a number of commitments from Gazprom to address the Commission’s competition concerns regarding conduct by Gazprom that allegedly restricted the free flow of gas at competitive prices in Central and Eastern European gas markets. The (...)

The Croatian Competition Authority finds that a dominant telecommunication company did not abuse its dominance through predatory pricing (VIPnet)
Croatian Competition Agency (Zagreb)
VIPnet – no abuse of dominant position* The Croatian Competition Agency (CCA) found that VIPnet did not abuse a dominant position in the access to public telephone network at a fixed location for residential and/or non-residential customers, retail fixed broadband access and Pay television in (...)

The Indian Competition Authority opens investigation into abuse of dominance by a diversified textiles manufacturer in the market for Viscose Staple Fibre (Grasim Industries)
Vaish Associates, Advocates (New Delhi)
CCI directs investigation against Grasim Industries Ltd. (‘Grasim’) for abuse of dominant position* The CCI vide an order dated May 16, 2018 directed investigation against Grasim for abusing its dominant position in the relevant market for the sale of Viscose Staple Fibre in India. The (...)

The Cyprus Commission for the Protection of Competition imposes a fine of €1.19 million on an airport company for abuse of dominant position (Hermes Airports)
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Trojan Economics (Nicosia)
Introduction On 16 May 2018, the Cyprus Commission for the Protection of Competition (the “Commission”) imposed a fine of €1 193 864 on Hermes Airports Ltd for infringing Section 6(1)(a) of the Protection of Competition Law (Law 13(I)/2008), as amended (the “Law”). The aforesaid infringement is (...)

The Italian Competition Authority opens an investigation on an alleged abuse of dominant position in the post-trading sector (Monte Titoli)
Italian Competition Authority (Rome)
Investigation initiated against Monte Titoli for possible anti-competitive behaviour in the post-trading sector* On May 9, 2018 the Italian Competition Authority opened an investigation concerning an alleged abuse of dominant position carried out by Monte Titoli – a company belonging to the (...)

Mergers

The EU Court of Justice puts an end to the extensive interpretation by some competition authorities of the concept of gun jumping (Ernst & Young)
Kramer Levin Naftalis & Frankel (Paris)
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Kramer Levin Naftalis & Frankel (Paris)
In its judgment of 31 May 2018 (Case C-633/16, Ernst & Young), the European Court of Justice (ECJ) ruled that the termination of a cooperation agreement in connection with a M&A transaction prior to its clearing under merger control rules does not constitute a gun jumping practice. (...)

The EU Court of Justice issues important ruling on gun jumping and on the scope of the standstill obligation contained in the EU Merger Regulation (EY / KPMG)
Van Bael & Bellis (Brussels)
On 31 May 2018, the Court of Justice of the European Union (the “ECJ”) issued an important judgment on the scope of the standstill obligation contained in Article 7(1) of the EU Merger Regulation (the “EUMR”), which prohibits companies from implementing a notifiable concentration prior to clearance (...)

The EU Commission clears for the second time a merger subject to remedies on the market for the wholesale of premium Pay TV film channels (Ziggo / Liberty Global)
DG COMP (Brussels)
Mergers: Commission confirms approval of acquisition of Dutch cable TV operator Ziggo by Liberty Global, subject to conditions* The European Commission has reapproved with conditions, under the EU Merger Regulation, the acquisition of Ziggo by Liberty Global. The merger was first approved in (...)

The General Court of the EU finds that the Commission must re-assess compagnies request to waive their pricing commitments (Lufthansa)
Gomez Acebo & Pombo (Brussels)
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Gomez Acebo & Pombo (Brussels)
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Gomez Acebo & Pombo (Brussels)
In 2005, the European Commission cleared the planned acquisition of Swiss by Lufthansa subject to a a number of commitments, which included conditions on fares with regard to the Zurich-Stockholm and Zurich-Warsaw routes. On 4 November 2013, Lufthansa and Swiss submitted a request for a (...)

The Austrian and German Competition Authorities publish joint draft guidance on new filing thresholds
Van Bael & Bellis (Brussels)
On 14 May 2018, the German Federal Cartel Office (“FCO”) and the Austrian Federal Competition Authority (“FCA”) published for public consultation joint draft guidance on the newly introduced transaction value merger filing thresholds in Austria and Germany. By way of background, in May 2017, new (...)

The German and Austrian Competition Authorities submit for public consultation a joint draft guidance paper on the application of the new transaction value threshold in merger control
German Competition Authority (Bonn)
Joint guidance on new transaction value threshold in German and Austrian merger control submitted for public consultation* he Bundeskartellamt and the Austrian Federal Competition Authority have today submitted for public consultation a joint draft guidance paper on the application of the new (...)

The UK Administration amends jurisdictional thresholds for changes in control over businesses that are active in certain specific sectors
Simmons & Simmons (London)
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Simmons & Simmons (London)
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Simmons & Simmons (London)
On 14 May 2018, the Enterprise Act 2002 (Turnover Test) (Amendment) Order 2018 (SI 2018/593) and Enterprise Act 2002 (Share of Supply Test) (Amendment) Order 2018 (SI 2018/578) were published. These amend the jurisdictional thresholds set out in section 23 of the Enterprise Act 2002 (the Act) (...)

The Irish Competition Authority obtains remedies in order to clear a merger in the wholesale and retail market (4 Aces / BWG)
Irish Competition Authority (Dublin)
CCPC obtains commitments from BWG to secure approval for proposed acquisition of 4 Aces Wholesale* Following an extensive investigation, the Competition and Consumer Protection Commission (CCPC) has today cleared the proposed acquisition of 4 Aces Wholesale Limited (“4 Aces”) by BWG Foods (...)

State Aid

The EU Commission approves compensation granted by Denmark to the incumbent postal company to fulfil its public service mission (Post Danmark)
DG COMP (Brussels)
State aid: Commission approves compensation granted by Denmark to Post Danmark for its universal service obligation* The European Commission has concluded that the compensation granted by Denmark to Post Danmark to fulfil its public service mission during the period 2017-2019 is in line with (...)

The EU Commission imposes to Germany to recover illegal aid from certain large electricity users exempted from network charges
DG COMP (Brussels)
State aid: Germany needs to recover illegal aid from certain large electricity users exempted from network charges in Germany in 2012-2013* The European Commission has concluded that the exemption for certain large electricity users in Germany from network charges in 2012-2013 was against EU (...)

Procedures

The EU Parliament and Council reach a provisional political agreement on a Commission proposal for a Directive to make Member States’ competition authorities even more effective enforcers of EU antitrust rules (ECN+ Directive)
Van Bael & Bellis (Brussels)
On 30 May 2018, the European Parliament and the Council reached a provisional political agreement on a Commission proposal for a Directive to make Member States’ competition authorities even more effective enforcers of EU antitrust rules (the so-called “ECN+ Directive”). The Commission’s proposal (...)

The EFTA Court clarifies the applicable legal regime for private enforcement and margin squeeze (Fjarskipti / Siminn)
Desogus Law Office (Cagliari)
Following a request for an advised opinion made by an Icelandic judge, the EFTA Court has handed down a judgement in the Fjarskipti v Siminn case touching on some procedural and substantive competition law issues. The EFTA Court clarified which are the rules that in the EFTA legal system apply (...)

The European Parliament and Council reach a provisional political agreement concerning new rules to make national competition authorities even more effective enforcers (ECN+ Directive)
DG COMP (Brussels)
Commission welcomes provisional political agreement reached by European Parliament and Council on new rules to make national competition authorities even more effective enforcers* The European Commission welcomes the provisional political agreement reached today by the European Parliament and (...)

The High Court of Delhi upholds the right to counsel during antitrust investigation by Director General but restricts the scope of counsel to exclude direct consultation with client (Oriental Rubber)
Vaish Associates, Advocates (New Delhi)
Delhi High Court upholds right to counsel during DG investigation* The division bench of the Delhi High Court by its judgement dated May 24, 2018 in Competition Commission of India and Anr. v. Oriental Rubber Industries Pvt. Ltd. has upheld the right of a person summoned by the Director (...)

The Supreme Court of India rules that the appellate tribunal was not legally justified in dismissing appeal in a cartel case (Himmatlal Agrawal / Competition Commission of India)
Vaish Associates, Advocates (New Delhi)
Supreme Court limits NCLAT’s appellate jurisdiction* The Supreme Court of India in its judgement dated May 18, 2018 in M/s B. Himmatlal Agrawal v. Competition Commission of India, Civil Appeal No. 5029/2018 has set aside the NCLAT’s order and restored the appeal dismissed by the NCLAT. The (...)

The US DOJ Antitrust Division names new deputy assistant attorney general for criminal enforcement
Skadden, Arps, Slate, Meagher & Flom (Washington DC)
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Skadden, Arps, Slate, Meagher & Flom (Washington DC)
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Skadden, Arps, Slate, Meagher & Flom (Washington DC)
Richard A. Powers has recently joined the Department of Justice (DOJ) Antitrust Division as the acting deputy assistant attorney general (DAAG) for criminal enforcement and is expected to take on the role permanently. This is important because Mr. Powers will serve as the Antitrust Division’s (...)

The Chinese Government establishes the State Administration for Market Regulation (SAMR) combining the antitrust enforcement responsibilities of the previous Price Supervision and Antimonopoly Bureau of the National Development and Reform Commission, the Antimonopoly Bureau of the Ministry of Commerce and the Antimonopoly and Anti-unfair Competition Bureau of the State Administration of Industry and Commerce
Jones Day (Beijing)
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Jones Day (Beijing)
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Jones Day (Beijing)
China recently established the State Administration for Market Regulation ("SAMR"), which combines the antitrust enforcement responsibilities of the previous Price Supervision and Antimonopoly Bureau of the National Development and Reform Commission ("NDRC"), the Antimonopoly Bureau of the (...)

The Supreme Court of India clarifies that the determination of relevant market is not a mandatory pre-condition for initiating investigations of alleged anticompetitive agreements (Co-ordination Committee of Artists and Technicians of West Bengal Film and Television Industry)
Vaish Associates, Advocates (New Delhi)
Supreme Court clears air on definition of relevant market in Section 3 (anti-competitive agreement) cases* The Supreme Court by its order dated May 7, 2018 has clarified that the determination of a ‘relevant market’ is not a mandatory pre-condition for undertaking an assessment of an alleged (...)

Regulatory

The French Competition Authority issues an opinion that clarifies the conditions for application of competition law in the agricultural sector
French Competition Authority (Paris)
Agricultural sector* Following a referral by the government, the Autorité de la Concurrence has issued an opinion that clarifies the conditions for application of competition law in the agricultural sector Background During the French National Food Conference (États généraux de l’alimentation), (...)

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