November 2007

Anticompetitive practices

The Italian Competition Authority fines for more than € 4 M two leading producers of concrete, alleging the violation of Art. 81 and 82 EC, including predatory pricing (Mercato del calcestruzzo cellulare autoclavato)
Ashurst
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Legance - Studio Legale Associato
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Background On 24 October 2007, the Italian Competition Authority (Autorità garante della concorrenza e del mercato) fined two leading producers of autoclaved cellular concrete (ACC), namely Xella International GmbH (Xella) and RDB S.p.A. (RDB) alleging that they had entered into some form of (...)

The Greek Competition Authority fines an automobile manufacturer for resale price maintenance (Hyundai Hellas)
Van Bael & Bellis (Brussels)
In a decision adopted on 29 November 2007 which has recently become available, the Greek Competition Authority found that Hyundai Hellas SA (“Hyundai”) had engaged in resale price maintenance with respect to sales of spare parts and after-sales services by members of its authorised network. The (...)

The French Competition Council condemns practices restricting prices for medical services provided in public hospitals (Anatomic and Cyto Pathology services)
Moskvina Law, PLLC
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Darrois Villey Maillot Brochier
Anatomic pathologists and cytopathologists examine cells and tissues to diagnose disease. Such physicians provide services to public hospitals pursuant to negotiated agreements or winning bids. To practice, physicians must join the National Medical Authority, and register with the Authority’s (...)

The Spanish Competition Authority adopts decision relating to the application of the VABER to certain non-compete obligations
Van Bael & Bellis (Brussels)
On 27 November 2007, the Spanish Competition Authority adopted a decision finding that Disa Península S.L., a supplier of fuel, did not breach the Spanish equivalent to Article 81 EC by concluding a number of distribution agreements with petrol stations containing non-compete provisions. The (...)

A Danish Court inflicts a criminal sanction to a company director and fines mobile phone dealers for fixing prices and transport costs following transmission of the case from the NCA (Telemobilia - Aircom Erhverv - Jokerprice)
Danish Competition and Consumer Authority (Copenhagen)
On 27 November 2007 the Danish District Court of Roskilde found that the mobile phone distributor Telemobilia ApS (“Telemobilia”), and its director had fixed prices with two other mobile phone distributors (Aircom Erhverv and Jokerprice). The court imposed a fine of DKK 125,000 (EUR 17,000) on (...)

The Italian Competition Authority starts investigation in the market of sport motoring for alleged abuses of Art. 81 and/or 82 EC (Automobile Club d’Italia)
National University of Singapore
On 22 November 2007, the Italian Competition Authority ( hereinafter, also the “Authority”) opened proceedings in the sector of sport motoring for alleged breach of article 81 and/or 82 of the European Treaty. Investigation started against ACI (“Automobile Club d’Italia”, public entity and (...)

The Italian Competition Authority fines € 11.3 M a market-sharing agreement in the water services sector (Acea / Suez / Publiacqua)
Luigi Prosperetti & Partners
Background Over the past ten years, Italian water services - traditionally managed by municipalities or small local operators - have been slowly consolidated, on the basis of a 1994 law, in 91 larger franchises (Ambiti Territoriali Ottimali, or ATOs). In 27 of these, 20 to 25 years concessions (...)

The Lisbon Court of Appeal upholds the Commercial Court’s decision that had confirmed a decision of the Portuguese Competition Authority relating a proceeding pursuant to Competition Law and rejected the arguments of Portuguese Medical Association (Ordem dos Médicos)
Ana Oliveira Bruno e Associados - Sociedade de Advogados (Lisbon)
1) The Administrative Proceedings – Autoridade da Concorrência (Portuguese Competition Authority) On April 22, 2006, the Autoridade da Concorrência (Portuguese Competition Authority - PCA) imposed a fine to the Portuguese Medical Association in the amount of €250,000.00 for setting maximum and (...)

The Italian Administrative Supreme Court confirms € 370 million fine against a cartel in the jet fuel market, launching debates on a new era for European joint-ventures (Rifornimenti Aeroportuali)
Studio Legale DDPV
Preface The Italian Administrative Supreme Court (Consiglio di Stato “CdS”), following the appeal of the investigated companies, did not annul the Italian Antitrust Authority’s (the “Authority”) decision concerning an alleged collusion in the jet fuel market among several oil companies () (the (...)

The Japan Fair Trade Commission imposes surcharges on participants in bidding for the subway construction project and applies its leniency program (City of Nagoya)
Japan Fair Trade Commission (Tokyo)
Cease and Desist Order and Surcharge Payment Order Against Corporate Bidders for the Subway Construction Project Commissioned by the City of Nagoya* The Japan Fair Trade Commission (JFTC), in accordance with the provisions of the Antimonopoly Act (AMA), investigated the corporate bidders for (...)

The Lisbon Court of Appeal confirmed the Portuguese NCA’s decision on the salt cartel case (Salexpor, Salmex, Vitasal)
Cuatrecasas, Goncalves Pereira (Lisbon)
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Gleiss Lutz (Stuttgart)
On 7 November 2007, the Lisbon Court of Appeal issued his decision on the “salt cartelcase”, on the appeal filed by the undertakings Sociedade Aveirense de Higienização de Sal, Lda. and Salexpor - Companhia Portuguesa de Sal Higienizado, S.A., making this the first cartel case detected and (...)

A Dutch Court rules on the anticompetitive effects of an obligation to offer for sale a supermarket in case of termination of a franchise agreement in the large retail distribution sector (Prisma)
European Commission - DG HR
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European Court of Justice (Luxembourg)
The present case was concerned with the restrictive effects, under competition law, of contractual conditions surrounding the ending of a franchise agreement in the supermarket sector. The facts of the case were the following. In 1989, Prisma, the legal successor of Flevozoom Vastgoed B.V., (...)

The Lisbon Appeal Court confirms a major NCA’s cartel decision paving the way for a robust practice of control of anticompetitive agreements in Portugal (’Salt Cartel’ - Salexpor, Salmex, Vitasal)
Luís Silva Morais & Associados
The recent Lisbon Appeal Court (“Tribunal da Relação de Lisboa”) decision, of 7 November 2007 is, for several reasons, noteworthy, in the context of Portuguese competition policy. After the major reform of Portuguese Competition Law of 2003, concerning both substantive law and the institutional (...)

A Czech Regional Court rules that it is not possible to declare a concurrent breach of Czech and Community competition laws (Tupperware)
Weil, Gotshal & Manges (Prague)
On 1st November 2007, the Regional Court in Brno quashed a decision of the Chairman of the Office for the Protection of Competition (the “Office”) which imposed a fine of CZK 2,300,000 on Tupperware Czech Republic for a breach of Section 3(1) of the Czech Competition Act for the period until the (...)

Unilateral Practices

The Japanese courts dismiss a predatory pricing lawsuit brought by Yamato against Japan Post (Yamato Unyu, Nippon Yūsei Kōsha, Yūbin Jigyō)
European Commission - DG COMP (Brussels)
The views expressed in this case summary are those of the author, not those of any organisation. Yamato, Japan’s largest door-to-door delivery service, sought injunctive relief against the low prices of a competitor, Japan Post. In a judgment of 19 January 2006, the Tokyo District Court (...)

The French Competition Authority dismisses a complaint regarding an alleged abuse of dominant position on the market for passenger transport between Paris and London (Eurostar)
French Competition Authority (Paris)
Press Release published on the official website of the French Competition Authority. Paris-London: The Conseil de la concurrence considers that Eurostar did not adopt a predatory behaviour aimed at eliminating competition.* Following a complaint filed by British Airways on 18 November 2004, (...)

The Swedish Market Court holds that the electricity network for municipalities street and road lighting is not an essential facility and rejects alleged abusive refusal to supply and price increase (Ekfors)
Swedavia AB
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White & Case (Stockholm)
In 2006, two Swedish municipalities (Haparanda and Övertorneå kommun, hereinafter referred to as the “Municipalities” ) filed a complaint to the Swedish Competition Authority (“SCA”), accusing a number of electricity companies (“Ekforsbolagen”) of abusing their dominant position by refusing to supply (...)

The Swedish Market Court rejects action for alleged abuse of dominant position in the electricity sector (Ekfors)
General Court of the European Union (Luxembourg)
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Kreab
Background The electricity company, Ekfors AB (Ekfors) had provided electricity to two communes in the north of Sweden, Övertornea and Happaranda (the communes) for almost 50 years. In 2002, Ekfors announced that it was planning to raise the price for the provision of electricity for road and (...)

The German Federal Court of Justice rules that a public undertaking offering for rental public domain must held tender proceedings in order to comply with both freedom of competition and public welfare (“Zulassungsstelle/Schilderpräger”)
McDermott Will & Emery (Düsseldorf)
Background In Germany, the owner of a new or used automobile is obliged to register the vehicle with the registration office (“Zulassungsstelle”), which is part of the local public administration. Once a vehicle is registered, the owner is entitled to attach license plates to the vehicle. Since (...)

A Lithuanian Court reopens the "Gas saga" by sending alleged abuse of dominance of the gas supplier incumbent back to the NCA for reinvestigation (Akmenes energij/Lietuvos dujos)
Lithuanian Competition Council
On 7 November 2007, the Vilnius District Administrative Court (VDAC) ordered the Competition Council to reinvestigate the earlier closed case of the suspected Article 9 (equivalent to Article 82 EC) infringement by AB Lietuvos dujos (LD), a natural gas supplier. The Court’s judgment represents (...)

The Turkish Competition Board rejects a consumer complaint alleging restriction of competition on the market for PC operating systems and application software (Duzgit v HP, Teknosa and Penta)
University of Leeds
On 8 November 2007 the Turkish Competition Board (TCB) rejected a complaint by a consumer alleging the restriction of competition on the Turkish market for PC Operating Systems (OSs) and application software. The complainant had alleged that the consumer’s request to install another OS onto the (...)

The Lithuanian Supreme Administrative Court orders investigation on alleged abusive access conditions to airport facilities (flyLAL)
Lithuanian Competition Council
On 5 November 2007, the Lithuanian Supreme Administrative Court (LSAC) upheld the judgment of the Vilnius District Administrative Court (VDAC) ordering the Competition Council to investigate whether by restricting the access to the airport facilities the State Enterprise Tarptautinis Vilniaus (...)

The U.S. District Court for the Southern District of New York finds that an association demanding its members to combine their websites into one unified website does not constitute an unreasonable restraint of trade in the hockey industry (Madison Square Garden/NHL)
Entwistle & Cappucci
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Epstein Baker Green (Newark)
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Ferro Labella & Zucker (New Jersey)
The Southern District of New York recently denied Madison Square Garden L.P.’s ("MSG") attempt to enjoin the National Hockey League (the "NHL") from transferring MSG’s Rangers team website to a server primarily run by the NHL. The Court found that seizing MSG’s website was not a naked restraint on (...)

Mergers

The Czech NCA clears a merger in the IT services sector with remedies, including the transfer of a public contract to a third independent party (Telefónica/Deltax)
Clifford Chance (Prague)
The operation Telefónica O2 Czech Republic a.s. ("Telefonica") acquired a 100 % share in DELTAX, Systems a.s. ("Deltax"), a company specialized in software and IT solutions. The market(s) The relevant market was defined as the market of IT services. Since the merging parties would have the (...)

The Latvian Competition Council cleared a merger in the sugar distribution market subject to behavioural remedies (Danisco Sugar and Jelgavas Cukurfabrika)
Raidla Lejins & Norcous (Riga)
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Cobalt Legal (Riga)
The operation On 27 July 2007 the Competition Council received a Merger Notification submitted by Danisco Sugar AS (hereinafter - Danisco Sugar) and Jelgavas Cukurfabrika AS (hereinafter- Jelgavas Cukurfabrika) on a merger between Danisco Sugar and Jelgavas Cukurfabrika. Danisco Sugar would (...)

The Romanian High Court of cassation towards a reconciliation with the Competition council on merger filing rules ? (Global Vehicles USA)
Peli Filip
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NNDKP
The last years have revealed significant divergences between the Romanian Competition Council and the High Court of Cassation and Justice regarding certain merger notification aspects. A recent High Court of Cassation and Justice decision seems however to indicate a potential reconciliation of (...)

The Swiss Competition Commission approved a merger in the retail sector subject to remedies, including the elimination of exclusivity clauses in supply contracts and an independent commercial strategy for one of the target’s businesses (Coop/Fust)
NERA (Berlin)
The operation Coop is the second largest retail group in Switzerland. Dipl. Ing. Fust AG (“Furst”) is a high-street retailer of electrical goods and appliances. Following a Stage 2 investigation, the Swiss Competition Commission (WEKO) cleared the merger subject to remedies on 21 November (...)

The French Minister of Economy clears a merger in phase II in the markets of exhibition site management and organisation of trade exhibitions with remedies, including assets increase and price regulation remedies (CCIP / Unibail)
University Paris II Panthéon‑Assas
The operation By a letter dated 13 November 2007, the French Minister of Economy, Finance, and Employment authorized in phase II the merger between the trade exhibitions and conferences activities of the Industry and Trade Chamber of Paris (« CCIP ») and the Unibail holding SA (« Unibail »). The (...)

The French Minister of Economy approves a concentration in the sector for organization of fairs and shows subject to phase II undertakings (Unibail Holding / CCIP)
Darrois Villey Maillot Brochier
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Moskvina Law, PLLC
The Paris Chamber of Commerce and Industry (CCIP), among other activities, organizes fairs, shows and congresses. Unibail is a leading French commercial property investor and developer, active in shopping centers, offices, and conventions and exhibitions. The latter branch manages sites and (...)

The French Minister of Economy authorizes the creation of a quasi-monopoly on the markets of exhibition site management and organisation of trade exhibitions following 25 years duration remedies concerning, inter alia, increase of services (Unibail Holding / CCIP)
Imerys
By a letter dated 13 November 2007, the French Minister of Economy, Finance, and Employment (the Minister) following the French Competition Council’s opinion dated 26 September 2007, decided to authorize the project of the merger between the trade exhibitions and conferences activities of CCIP (...)

The European Commission clears, subject to divestiture, an acquisition in the food sector (Kraft/Danone Biscuits)
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European Commission - DG COMP (Brussels)
"Mergers: Main developments between 1 September and 31 December 2007"* On 9 November the Commission approved the proposed acquisition of the worldwide biscuits, snacks and cereals business of Danone of France by the US-based company Kraft. The Commission’s decision was granted subject to the (...)

The European Commission conditionally clears a merger in the railways sector (Deutsche Bahn/English Welsh & Scottish Railway Holdings)
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European Commission - DG COMP (Brussels)
"Mergers: Main developments between 1 September and 31 December 2007"* On 6 November the Commission cleared the proposed acquisition of English Welsh & Scottish Railway Holdings (EWS) by Deutsche Bahn (DB). The Commission’s decision was subject to DB‘s undertaking to fulfil EWS‘ expansion (...)

The Turkish Competition Board authorizes the assignment of the operational rights of the Antalya airport to third parties (Antalya Gazipa Airport/Aydoðan-Gazipa-TAV)
Erdem & Erdem (Istanbul)
By its decision dated 11 January 2007, the Turkish Competition Board (hereinafter referred as “CB”) granted authorization regarding the assignment of the operational rights of Antalya Gazipaºa Airportthrough renting all facilities, equipment and systems in its current borders, for a period of 25 (...)

State Aid

The Cyprus Commissioner for State Aid Control authorises a draft aid scheme for the provision of aid to farmers affected by the outbreak of foot-and-mouth disease, finding that it falls within EC Reg. N°1857/2006 (Aid to livestock farmers)
International Transport Forum
Factual Background On 15 November 2007 the Department of Agriculture of the Ministry of Agriculture, Natural Resources and Environment notified to the Cyprus Commissioner for State Aid Control a draft aid measure, entitled “indemnity/aid to livestock farmers due to foot-and-mouth disease”. The (...)

The French Administrative appeal court of Marseille dismisses the appeal of tax payers claiming the refund of the of the tax on meat purchases judging an absence of hypothecation of the levy to aid measure (Tax on meat purchases)
Sheppard Mullin (Brussels)
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European Court of Justice (Luxembourg)
Factual Background The appellants seek the annulment of the judgement of the tribunal of first instance in which the tribunal rejected the repayment of taxes paid on meat purchases for the period 2001 to 2003 and 2001 to 2002. Summary of the Court’s findings The court adopts the same (...)

The European Commission issues a new notice on the recovery of unlawful and incompatible State aid
European Commission - DG COMP (Brussels)
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European Commission - DG COMP (Brussels)
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European Commission - DG MOVE
"The new Commission Notice on the recovery of unlawful and incompatible State aid"* I. Introduction The success and credibility of the Commission’s State aid policy is very much dependent on the effective and timely implementation of negative Commission decisions ordering recovery. Any failure (...)

The Belgian Civil Supreme Court found that alterations to an existing State aid scheme have to amount to a modification of the system itself to constitute a new aid and for the scheme to be notifiable to the EC Commission (Belgacom)
Sheppard Mullin (Brussels)
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European Court of Justice (Luxembourg)
Factual background In the decision of the Court of Appeal of Brussels of 16 March 2005, it was held that the Belgian State was not wrong to allow Belgacom, the incumbent Belgian telecommunication company to benefit from a tax exemption pursuant to a provision in a law of 1930 and included in (...)

The French Administrative appeal court of Paris dismisses the appeal of tax payers claiming the refund of the of the tax on meat purchases judging an absence of hypothecation of the levy to aid measure (Tax on meat purchases)
Sheppard Mullin (Brussels)
,
European Court of Justice (Luxembourg)
Factual Background The appellants seek the annulment of an order of the tribunal of first instance in which the tribunal rejected the repayment of taxes paid on meat purchases, instituted by Article 302 bis ZD of the general tax code, for which it was subject for the period 2001 to 2003 for an (...)

Procedures

The Irish High Court gives some indications as to the extent to which the judiciary may intervene in the NCA’s investigations (Competition Authority v. District Judge O’Donnell)
London School of Economics
High Court grants certiorari and quashes decision taken against the Competition Authority regarding the Authority’s conduct in an on-going cartel investigation Background It follows from Article 45(2) and (3) of the Irish Competition Act 2002 (the Act) that the Competition Authority (the NCA) (...)

OFT recommends far-reaching changes to private enforcement of competition law in the UK
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Linklaters (London)
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Linklaters
On 26 November 2007, the OFT published its recommendations to the Government on measures to improve the effectiveness of redress for consumers and businesses for breaches of competition law. The recommendations followed the OFT’s informal consultation on private actions in competition law, (...)

The Czech NCA unexpectedly fines a company for ignoring a request for information: A call for the new broom to sweep clean? (VAVRYS CZ)
Government of the Czech Republic
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European Court of Justice (Luxembourg)
On 23 November 2007, the Czech Office for the Protection of Competition fined VAVRYS CZ, a minor outdoor clothing and equipment distributor, CZK 100.000 (approx. 3.700 €) for ignoring a request for information. Although the sum is insignificant in itself, the measure is somewhat revolutionary (...)

The Luxembourg Administrative Tribunal rules on the prohibition of self-incrimination in cartel investigation procedures
MOYSE BLESER law firm
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Herbert Smith Freehills
I. Introduction On 15 November 2007, the Luxembourg administrative tribunal (Tribunal administratif) (“Tribunal”) rejected an action for annulment (hereinafter the “Action”) filed against a decision adopted by the Competition Inspectorate (Inspection de la concurrence) (“Inspectorate”), by virtue (...)

The German federal Court of justice strengthens the position of the energy network agency in Court of appeal proceedings (Beteiligung der Bundesnetzagentur)
Hengeler Mueller (Dusseldorf)
Background Currently, a regime of price regulation is applied to the German energy sector in which the regulator has to approve ex ante network access charges of all transmission and distribution network operators (Sec. 23a Energy Industry Act - EnWG). In this respect, the Federal Network (...)

The French Supreme Court holds that a letter requesting to attend hearings interrupts the prescription period and restrictively applies Art. 6.1 and 7.1 ECHR (Strasbourg European Parliament)
Canal + Overseas
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University Paris II Panthéon‑Assas
Background In its decision dated 21 September 2005, the French Competition Council sanctioned, on the basis of Article L. 420-1 of the French Commercial Code (FCC), the provision mirroring Art. 81 EC, eight companies (Cilia, Somoclest, CCB Dufaylite, DBS, Sort et Chasle, Soe Stuc et Saff, (...)

The Swedish Market Court rejects the NCA’s application for fining an association of undertakings providing car towing services for price setting due to standard of proof issue (MRF - Bärgarna / Assistancekåren)
Swedish Competition Authority (Stockholm)
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Swedavia AB
In 2002, the Swedish Competition Authority (the ) received complaints regarding the Swedish association of companies which provide car towing services, MRF-Bärgarna, and its subsidiary Assistancekåren Sweden AB (“Assistancekåren”). The SCA launched an investigation and in January 2003 carried out (...)

Regulatory

The Luxembourg Competition Council issues an opinion on the market for taxi services anticipating a Parliament vote on a draft law
MOYSE BLESER law firm
Following a request from the Minister of the Economy and Foreign Trade of 19 September 2007, on 15 November 2007 the Council issued an opinion n° 2007-AV-02 on the question of whether the State is still allowed to fix prices in the market for taxi services under the conditions set out by the law (...)

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