November 2008

Anticompetitive practices

The EU Commission presents its preliminary report into the pharmaceutical sector
Linklaters (London)
,
French Competition Authority (Paris)
,
Linklaters (London)
The European Commission presented its Preliminary Report into the pharmaceutical sector (which runs to 426 pages) at a public hearing on 28 November. The deadline for comments on the Report is 31 January 2009. Click here for a copy of the Report, the Commission’s press release and the opening (...)

The ECJ Advocate General Mengozzi recommends annulment of CFI’s judgment in the collective management of copyright sector (AEPI)
Van Bael & Bellis (Brussels)
Advocate General (AG) Mengozzi has recently delivered two interesting opinions in the field of competition law enforcement. On appeal in the AEPIand Archer Daniels Midlandcases, he advised the Court of Justice to quash the judgments of the Court of First Instance (CFI). He further recommended (...)

The French Civil Supreme Court rules that the violation by foreign websites of the obligation to inform consumers on the existence of a copyright levy constitutes unfair competition to a French company (Rue du Commerce v. Dabs, Omnisoft and others)
Google (Paris)
Copyright laws of most European Member States provide that the price of storage products such as tapes or discs include a copyright levy, to compensate authors whose work will be copied on these media. The amount of this copyright levy differing from one country to another, resellers of such (...)

The Danish public prosecutor inflicts the highest personal fine ever to flour producer and its director for resale price maintenance contrary to the Competition Act (Valsemølle)
Danish Competition and Consumer Authority (Copenhagen)
On 27 November 2008, the Danish flour producer Valsemølle A/S and its director accepted fines of DKK 1 million (EUR 134,000) and DKK 100,000 (EUR 13,000) respectively for having infringed Article 6 of the Danish Competition Act (national provision similar to Article 81 of the EC Treaty) by (...)

The Serbian Competition Authority holds unlawful minimum tariffs imposed to members of a professional association (Veterinary Chamber of Serbia)
University of Belgrade
Following a complaint, the Serbian Competition Authority (Komisija za zastitu konkurencije) started an investigation concerning the fixation of minimum prices by the Veterinary Chamber of Serbia (“Veterinarska komora Srbije”), a professional association of veterinaries. The Competition Authority (...)

The European Court of Justice rules on capacity reduction agreements in Irish beef case (Beef Industry Development Society and Barry Brothers (Carrigmore) Meats)
Van Bael & Bellis (Brussels)
On 20 November 2008, in a ruling on a preliminary reference from the Irish Supreme Court, the European Court of Justice (ECJ) found that the object of an agreement between Irish beef processors designed to reduce overcapacity in the sector was anti-competitive. In its ruling, the ECJ followed (...)

The Competition Authority of Bosnia & Herzegovina prosecutes anticompetitive agreements from the regional health insurance office (Novo Nordisk v. Health Insurance Office of the Sarajevo Canton)
University of Technology (Tallinn)
Summary The Competition Authority of Bosnia & Herzegovina qualified the actions of the Health Insurance Office of the Sarajevo Canton, which excluded the pharmaceutical products of Novo Nordisk from the list of approved medicines sold to the insured under the national health insurance (...)

The Greek Competition Authority condemns two multinational companies for a rebate scheme in the gasoline market (BP/Shell)
Hellenic Competition Authority (Athens)
The case concerned the common conduct from the two multinational companies in the Greek gasoline market BP and Shell (40% of the internal market) from 1st January 2003 until 31 Decemer 2003. In particular, the investigation carried out ex officio by the Hellenic Competition Commission (HCC) (...)

The US DoJ Antitrust Division adopts revised leniency program to restricts corporate options in responding to cartel allegations
Miller & Chevalier
,
Paul Hastings (Washington)
,
In direct response to the Department of Justice Antitrust Division’s loss in the controversial Stolt-Nielsen criminal antitrust case, the Antitrust Division revised its leniency policy. The Division has prepared revised Model Leniency Letters and issued an explanatory document entitled (...)

The US DOJ issues new guidance on its antitrust criminal leniency program
Jones Day (Washington)
,
Jones Day (Washington)
On November 19, the Antitrust Division of the U.S. Department of Justice (« DOJ ») issued new guidance on its leniency program, under which cartel participants that cooperate with the government may avoid prosecution. This detailed guidance, « Frequently Asked Questions Regarding the Antitrust (...)

The United States District Court for the District of Massachusetts draws rule of reason around relationships with retailers who compete with their own store brands (Bedi / Hewlett-Packard and Staples)
Sheppard Mullin (San Francisco)
,
U.S. Department of Justice (Washington)
Agreements between suppliers and retailers are typically viewed under a rule of reason applicable now to virtually all “vertical” relationships in a supply chain. Many retailers, however, also market their own store brands which compete with branded products they purchase from their (...)

A US Federal District Court rejects per se rule for vertical market allocation agreement (Hewlett-Packard, Staples)
Jones Day (Houston)
A federal district court has dismissed the claim that an agreement between Hewlett-Packard (HP) and its customer Staples office supply stores, under which Staples stopped selling its own ink cartridges for HP printers, was a per se illegal antitrust violation. This new decision provides a (...)

The Luxembourg Administrative Court confirms the fines and daily penalties imposed by the Competition Council to undertakings for not communicating concrete information to the Competition Inspectorate (House of Justice)
Arendt & Medernach (Luxembourg)
,
European Investment Bank
Background of the case 1. The flooring works in the new court buildings in the city of Luxembourg are still the object of the most prolific cartel procedure in the recent history of Luxembourg competition law. The case has already led to several decisions while the cartel investigations are (...)

The UK Competition Commission publishes for consultation its proposed remedies to improve competition in payment protection insurance market (PPI)
Compass Lexecon (London)
Summary The Competition Commission has recently invited consultation on its proposed remedies to improve competition in the payment protection insurance (PPI) market. The Competition Commission designed the proposed remedies to overcome a “point-of-sale” advantage that suppliers of loans enjoy. (...)

The Japan Fair Trade Commission issues cease and orders and imposes surcharges on several manufacturers and sellers of automatic ambient air monitors for having implemented a price-fixing agreement (DKK-Toa, Horiba, Kimoto Electric and Shimadzu)
Japan Fair Trade Commission (Tokyo)
Cease and Desist Order and Surcharge Payment Order against Manufacturers and Sellers of Automatic Ambient Air Monitors* The Japan Fair Trade Commission (JFTC) has examined the manufacturers and sellers of automatic ambient air monitors (automatic measuring instruments to continuously measure (...)

The European Commission imposes the highest-ever cartel fine on four car glass manufacturers (Asahi Glass Company, Saint-Gobain, Pilkington, Soliver)
,
European Commission - DG COMP (Brussels)
,
European Commission - DG COMP (Brussels)
"Commission imposes the highest-ever cartel fine (more than € 1.3 billion) on four car glass manufacturers"* On 12 November 2008 the Commission adopted a decision and imposed fines totalling € 1 383 million on four manufacturers of car glass. The addressees of the decision were the Japanese firm (...)

The US DOJ fines three leading electronics manufacturers for price fixing cartel in the LCD panels industry (LG, Sharp, Chunghwa)
Jones Day (Brussels)
,
Jones Day (Washington)
,
Jones Day (Washington)
This week, in separate new matters, the United States and the European Union announced the detection and prosecution of price fixing agreements among competitors. The U.S. Department of Justice reported guilty pleas and fine agreements by three Asian manufacturers of liquid crystal display (...)

The European Commission fines automobile glass suppliers for market sharing cartel (Saint-Gobain, Pilkington, Asahi/AGC, Soliver)
Jones Day (Brussels)
,
Jones Day (Washington)
,
Jones Day (Washington)
This week, in separate new matters, the United States and the European Union announced the detection and prosecution of price fixing agreements among competitors. The U.S. Department of Justice reported guilty pleas and fine agreements by three Asian manufacturers of liquid crystal display (...)

The German federal competition authority holds the boycott of diary farmers violates national competition law (Milchboykott)
Beiten Burkhardt (Brussels)
Background In 2008 Germany bore witness to a controversial power struggle between dairy farmers on the one side and dairies and food retail companies on the other side. The Federal Dairy Farmers Association in Freising, Germany (Bundesverband Deutscher Milchviehhalter e.V. ; BDM), represents (...)

A Polish Court overturns the NCA’s decision on interchange fee holding that the participation of 20 banks in an agreement fixing the fee level does not constitute an infringement of Art. 81.1 EC nor equivalent national provision (Visa - Mastercard)
Hogan Lovells (Warsaw)
,
PKN Orlen
On 12 November 2008, the Polish Court for Competition and Consumer Protection (“the Court”) overturned the decision of the President of the Office for Competition and Consumers’ Protection (the “OCCP” or the “Office”) concerning interchange fees. The court stated that the participation of 20 Polish (...)

The Czech Chamber of Deputies adopts a new Code criminalising horizontal agreements
Government of the Czech Republic
,
European Court of Justice (Luxembourg)
After 11 November 2008, it appears that the managers of cartel members will have to add Prague to the growing list of “Airports to Avoid”. In fact, on that day, the Czech Chamber of Deputies adopted a new Criminal Code which, among other things, introduces the criminal offence of “breach of (...)

A German court holds that reciprocal representation agreements concluded between national collecting societies are not void for breach of Art. 81 EC (GEMA / BUMA, STEMRA)
Gleiss Lutz (Munich)
,
Milbank, Tweed, Hadley & McCloy (Munich)
On 7 November 2008, the Regional Court of Mannheim issued a decision on the validity of territorial limitations contained in reciprocal representation agreements concluded between national collecting societies. The case concerned the question whether a national collecting society was entitled (...)

The ECJ Advocate General Mengozzi recommends annulment of CFI’s judgment in the chemical sector (Archer Daniels Midland)
Van Bael & Bellis (Brussels)
Advocate General (AG) Mengozzi has recently delivered two interesting opinions in the field of competition law enforcement. On appeal in the AEPIand Archer Daniels Midlandcases, he advised the Court of Justice to quash the judgments of the Court of First Instance (CFI). He further recommended (...)

The Austrian Cartel Court imposes fines of € 1.9 million to a company member of a cartel affecting the supply of industrial chemicals (Donau Chemie Group and Donauchem)
Reidlinger Schatzmann Rechtsanwälte
,
Freshfields Bruckhaus Deringer
On 5 November 2008 the Austrian Cartel Court has imposed a fine of € 1.9 million on Donau Chemie AG and Donauchem GmbH, both part of the Donau Chemie Group, for their participation in a cartel affecting the supply of industrial chemicals. Further to that, the Cartel Court rejected the (...)

The Hungarian Competition Authority closes case against a professional association (Hungarian Chamber of Pharmacists)
Van Bael & Bellis (Brussels)
By an order of 4 November 2008, which has recently become publicly available, the Hungarian Competition Authority (“GVH”) decided to terminate its investigation into alleged anti-competitive practices by the Hungarian Chamber of Pharmacists (the “Chamber”) on the market for pharmaceuticals. The (...)

The Spanish Supreme Court firmly protects price competition in the liberal professions and gives a controversial view on the interaction between EC and national competition Law (Ricardo)
European Court of Justice (Luxembourg)
,
Garrigues
Introduction On 4 November 2008, the Spanish Tribunal Supremo (Supreme Court) handed down a landmark ruling in case 5837/2005, Ricardo v. Consejo General de la Abogacía. This case looks set to be a cornerstone of Spanish competition law for years to come. The judgment was delivered by the (...)

The Dutch Competition Authority decides not to impose fines on ten producers of fluid-concrete as the participation of all undertakings in the infringement was not established and as result no appreciable restriction of competition could be determined (Betonmortelfabriek Utrecht)
Stibbe (Amsterdam)
Introduction On January 11, 2006 the Dutch Competition Authority (NMa) imposed fines on ten Dutch producers of fluid-concrete for a total amount of € 6 million for an infringement of Article 6 of the Dutch Competition Act. According to the NMa the undertakings exchanged information about price (...)

Unilateral Practices

The European Commission approves structural remedies offered by German electricity operator in order to remove suspected infringements of EU Article 102 concerns in the German electricity wholesale and balancing markets (E.ON)
DG REGIO Regional and urban policy
,
European Commission - DG COMP (Brussels)
,
Agency for the Cooperation of Energy Regulators (ACER) (Slovenia)
"The E.ON electricity cases: an antitrust decision with structural remedies"* I. Introduction On 26 November 2008 the Commission adopted a commitment decision addressed to E.ON AG for suspected infringements of EU competition law involving the German electricity markets. For the first time in (...)

The Italian Competition Authority holds that airports abused their dominant position by setting excessive fees (Aeroporti di Milano)
Desogus Law Office (Cagliari)
The Italian Competition Authority (ICA) has ruled that SEA, the manager of the Milan airports of Linate and Malpensa breached Art. 82 EC and imposed on it a fine of € 1,549,000 . SEA abused its dominant position it enjoyed at the airports of Linate and Malpensa as holder of an exclusive licence (...)

A German Court confirms a decision of the local competition authority in which excessive retail water prices were prohibited on the basis of former German competition law provisions that still apply to the public water sector (Wasserversorgung Wetzlar)
Hengeler Mueller (Dusseldorf)
I. Background The ruling of the Higher Regional Court Frankfurt/ Main (Oberlandesgericht Frankfurt/ Main) confirms a decision of the competition authority of the Federal State Hesse in which the authority prohibited excessive water prices on the retail level charged by the public water (...)

The Cyprus Competition Commission holds that the incumbent airways operator does not abuse of its dominant position while providing visa services with airplane tickets (Yiannas Euripidou / Cyprus Airways)
Neocleous
Yianna Euripidou filed a complaint to the Cyprus Competition Commission as a consumer. She had visited Dubai by buying a ticket and VISA through the Cyprus Airways airline. The Visa was charged at the amount of $82. Mrs. Euripidou claimed that Cyprus Airways is taking advantage of their (...)

The Italian Competition Authority accepts commitments offered by the incumbent railway undertaking and closes proceeding for abuse of dominance in the rail sector (Rail Traction Company/Rete Ferroviaria italiana-Ferrovie dello stato)
Desogus Law Office (Cagliari)
By a recent decision, the Italian Competition Authority (ICA) accepted and made binding a set of commitments proposed by Ferrovie dello stato (FS) and its wholly owned subsidiary Rete Ferroviaria italiana (RFI), the Italian incumbent railway undertaking and the manager of the national rail (...)

The Budapest Court of Appeal overturns abuse decision in the telecommunications sector (Invitel)
Van Bael & Bellis (Brussels)
,
Practising Law Institute
By decision of 12 November 2008, the Budapest Court of Appeal confirmed that the Hungarian Competition Authority (GVH) erred by finding that communications company Invitel abused its dominant position in a 2006 decision. The GVH’s decision found that Invitel was abusing its position by (...)

The Italian Competition Authority accepts the commitments submitted by motorway companies in a proceeding relating to alleged anticompetitive agreements and abuse of dominant position in the roadside assistance market in Italy (ANAS, Società Strada dei Parchi, Società Autostrada Tirrenica)
Ashurst
,
Legance - Studio Legale Associato
,
Background On 20 September 2007, the ICA opened a proceeding regarding car assistance services provided in Italy on motorways, alleging that a) the motorways companies had breached Article 3 of Law 287/90 (national provision similar to art. 82 EC) and b) the roadside assistance providers, (...)

The Lithuanian Competition Council ends art. 82 EC investigation with another fine being imposed on the State-controlled operator of the national airport for restricting access to the airport facilities (Vilnius Airport - Naftelf)
Lithuanian Competition Council
On 6 November 2008 the Lithuanian Competition Council imposed a fine of LTL 171,000 (approx. EUR 49,525) on the State Enterprise Tarptautinis Vilniaus oro uostas (TVOU) for infringing Article 82 EC and its national equivalent by way of preventing entry to its potential competitor in the (...)

The Slovak Competition Authority fines a dominant telecommunication operator for margin squeeze (Slovak Telekom)
Van Bael & Bellis (Brussels)
,
Practising Law Institute
On 3 November 2008, the Slovak Antimonopoly Office (the “Antimonopoly Office”) imposed a fine of 73 million SKK (approximately € 2.4 million) on Slovak Telekom, the dominant telecommunications network owner and operator, for margin squeezing. Slovak Telekom operates the telecommunications network (...)

Mergers

The German merger control regime’s main features in light of recent developments
Freshfields Bruckhaus Deringer (Berlin)
,
Freshfields Bruckhaus Deringer
In over 35 years of its existence, the German merger control regime has gained a strong reputation all over the world due to its influential role in post-war Europe, high rate of enforcement and the important place held by the competition authority in charge of its enforcement, the (...)

The Finnish Competition Authority grants clearance subject to remedies to the acquisition of a Nordic premium pay-TV operator after extended second phase investigation (TV 4 AB / C More Group)
Roschier (Helsinki)
On 27 November 2007 following a twice extended second phase investigation period, the Finnish Competition Authority (“FCA”) conditionally approved the acquisition of C More Group AB (“CMore”) by TV 4 AB (“TV4”), owned by Bonnier Media Group (“Bonnier”) from the German media group ProSiebenSat1 AG. The (...)

The Higher Regional Court Düsseldorf upholds prohibition decision of the FCO in the hearing aid sector (Phonak / GN ReSound)
Van Bael & Bellis (Brussels)
In a recently published decision of 26 November 2008, the Higher Regional Court of Düsseldorf affirmed the decision of the Federal Cartel Office (“FCO”) prohibiting the Swiss hearing aid manufacturer Phonak Holding AG (“Phonak”) from acquiring its Danish competitor GN Store Nord AS(“GN ReSound”). (...)

The European Commission closes its investigation following the parties’ withdrawal of a proposed acquisition in the mining industry (BHP Billiton/Rio Tinto)
,
European Commission - DG COMP (Brussels)
"Mergers: main developments between 1 September and 31 December 2008"* On 26 November the Commission announced that it intended to close its investigation into BHP Billiton‘s proposed acquisition of Rio Tinto following BHP Billiton‘s announcement that it had abandoned the deal and had withdrawn (...)

The European Commission clears a merger between Hungarian and Austrian companies both active in the provision of rail freight transport and freight forwarding services (Rail Cargo Austria/MÁV Cargo)
,
European Commission - DG COMP (Brussels)
"Mergers: main developments between 1 September and 31 December 2008"* On 25 November the Commission cleared the proposed acquisition of MÁV Cargo of Hungary by the Austrian company Rail Cargo Austria (RCA), both active in the provision of rail freight transport and freight forwarding services. (...)

The Portuguese Competition Authority conditionally clears a merger in Phase II in the pay-TV market (TV Cabo/Bragatel, Pluricanal Leiria, Pluricanal Santarém)
Cuatrecasas, Goncalves Pereira (Lisbon)
,
Cuatrecasas, Goncalves Pereira (Lisbon)
On 21 November 2008, the Competition Authority decided not to oppose a concentration in the subscription television market subject to conditions and obligations, whereby CATVP - TV Cabo Portugal, S.A. (“TV Cabo”) acquired sole control over three competitors: Bragatel - Companhia de Televisão por (...)

The Portuguese Competition Authority conditionally clears a merger in Phase I in the pay-TV market (TV Cabo/TVTel)
Cuatrecasas, Goncalves Pereira (Lisbon)
,
Cuatrecasas, Goncalves Pereira (Lisbon)
On 21 November 2008, the Competition Authority decided not to oppose a concentration in the subscription television market subject to conditions and obligations, consisting in the acquisition of sole control by CATVP - TV Cabo Portugal over TVTel - Comunicações, S.A.. The transaction caused a (...)

The Chinese MOFCOM conditionally approves acquisition by the global Belgian beer producer of the US leading brewer (InBev/Anheuser-Busch)
Kastell
On November 18 2008, the Anti-Monopoly Bureau of the Ministry of Commerce (MOFCOM) approved the acquisition of U.S.-based Anheuser-Busch Companies Inc. by Belgian InBev NV/SA. The approval was, however, granted subject to conditions. This is the first such decision to be made public since the (...)

The Chinese Antitrust Authority provides guidance for merger review process under the new anti-monopoly law
Jones Day (Beijing)
,
Jones Day (Beijing)
,
Winston & Strawn (New York)
The China Ministry of Commerce (« MOFCOM »), which serves as the antitrust authority in charge of merger control under the new Anti-Monopoly Law (« AML »)[[ See Article 10 of the AML provides that the Anti-Monopoly Enforcement Authority ("AMEA"), designated by the State Council, is responsible for (...)

The French Minister of Economics sanctions for the second time companies for a breach of merger remedies (TF1 / AB Groupe)
Freshfields Bruckhaus Deringer (Paris)
,
Freshfields Bruckhaus Deringer (Paris)
By a departmental order on August 21, 2007, the Minister, for the first time sanctioned a company with a €100,000 fine for breach of merger remedies subscribed for the realization of the operation of concentration. In just over a year, by a departmental order dated November 17, 2008, the (...)

The Higher Regional Court of Düsseldorf widens the scope of application of merger control law according to Sec. 37(1) N° 4 ARC while prohibiting a merger in the copper continuous casting industry sector (A-TEC - Norddeutsche Affinerie)
Gleiss Lutz (Munich)
,
Milbank, Tweed, Hadley & McCloy (Munich)
On 12 November 2008, the German Higher Regional Court of Düsseldorf approved a decision of the German Federal Cartel Office (FCO) prohibiting the proposed acquisition of a 13.75% share in a company by a competitor. The case concerned the issue of whether, according to German law, a share (...)

The German Federal Court confirms that a change of control must occur on a lasting basis in order to be qualified as a “concentration” but leaves open the question which actions can constitute “gun-jumping” infringements (G+J/RBA)
Freshfields Bruckhaus Deringer (Berlin)
,
Freshfields Bruckhaus Deringer
With its judgment of 11 November 2008, the German Federal Court of Justice (Bundesgerichtshof) (Federal Court) has opened a new chapter in the never ending judicial saga relating to the German edition of the scientific magazine National Geographic, which has already found itself at the centre (...)

The German Federal Court of Justice confirms the prohibition of an energy merger considering that the German market for primary sales of electricity is dominated by a duopoly (E.ON / Stadtwerke Eschwege)
Freshfields Bruckhaus Deringer (Berlin)
,
Freshfields Bruckhaus Deringer
In a judgment of 11 November 2008, the German Federal Court of Justice (Bundesgerichtshof) (Federal Court) upheld a previous decision of the Higher Regional Court of Düsseldorf (Higher Regional Court) which had itself confirmed a decision of the Federal Cartel Office (FCO) blocking E.ON’s plan to (...)

The German Federal Court of Justice confirms the prohibition of a merger in the electricity market (E.ON / Stadtwerke Eschwege)
University of East Anglia - CCP (Norwich)
The German electricity market is dominated by four vertically integrated firms: E.ON, RWE, Vattenfalland EnBW exclusively able to cover both base load and peak load demand. Regional and local retailers, often municipality owned (Stadtwerke), sell electricity to final customers or other local (...)

The US DOJ requires extensive divestitures and changes the terms of licensing agreements before approving a merger in the market for genetically-engineered cotton seeds, but 13 state attorneys general claim these remedies do not solve the problem (Monsanto / Delta / Pine Land)
Office of the Texas Attorney General
The Monsanto Company has nearly completed its acquisition of Delta and Pine Land, uniting the two largest companies in the domestic, genetically- modified cotton seed industry. Subject to a Hart-Scott- Rodino review, the parties worked with the United States Department of Justice (“D.O.J.”) (...)

The US DOJ imposes non-traditional remedies in the form of both structural and conduct relief before clearing a merger in order to address the unique reliance on intellectual property and innovation required in the market for genetically-engineered cotton seeds (Monsanto / Delta / Pine Land)
Morrison & Foerster (Washington)
A recent settlement in a biotech merger case may signal a greater willingness by DOJ to accept remedy provisions it previously would have rejected, especially to resolve vertical issues in industries heavily dependent on intellectual property and innovation. Rather than challenge Monsanto’s (...)

State Aid

The European Commission publishes autumn update to State aid scoreboard
Van Bael & Bellis (Brussels)
On 17 November 2008, the Commission published the autumn update of its State aid Scoreboard. The update indicates that the objective of better targeted aid is well on track given that 80% of the total amount of aid is nowadays granted to horizontal objectives, compared to 50% in the middle of (...)

The Finnish Supreme Administrative Court sends a case back to the Administrative Court as it had not ruled on the question whether the arrangement constituted State aid (Atlas-Invest)
Dittmar & Indrenius
Factual Background The City Council of Kouvola had resolved to approve the purchase offer of 500,000.00 euros on a parcel of land. The purchase offer amounted to the equivalent of the price announced by the City of Kouvola, but after the approval of the offer, two other offers with higher (...)

The UK Lands Tribunal rules there is no evidence that the application of a different valuation method between undertakings to assess the value of telecommunications network has resulted in an advantage likely to confer unlawful State aid (Kingston - British Telecom)
Freshfields Bruckhaus Deringer (Tokyo)
The situation of BT and the assessment of the valuation of its fibre optic hereditament is not comparable to that of Vtesse and therefore it is impossible to say whether BT has been given any unfair advantage or more favourable treatment contrary to the broad principles of Article 87 EC. (...)

The Lithuanian Supreme Administrative Court states that a municipality is not entitled to grant interest-free credits without applying State aid rules (Kedainiai District Municipality Council)
Raidla Lejins & Norcous
,
Valiunas Ellex (Vilnius)
Factual background On 13 October 2000 the municipality council adopted decision No 187 “Concerning the Establishment of a Fund to Support Producers of Agriculture Products”. The decision provided for granting of interest-free credits to natural persons, undertakings, cooperatives, village (...)

The French Council of State deals with alleged State aid claimed by an interprofessional organisation requesting the annulment of a ministerial decision refusing the notification of a provision instituting compulsory contribution (Comité National des Interprofessions des Vins à Appelations)
Sheppard Mullin (Brussels)
,
European Court of Justice (Luxembourg)
Factual Background Twelve interprofessional organisations lodged a series of actions in annulment against a ministerial decision before the administrative jurisdictions, rejecting their demand for notification to the European Commission of a provision of the French rural code (Code rural) (...)

The French Supreme Administrative Court delineates an administrative judge’s jurisdiction over governmental decisions when applying Art. 88.3 EC (Comité national des interprofessions des vins à appellations d’origine)
Kramer Levin Naftalis & Frankel (Paris)
,
Orrick, Herrington & Sutcliffe (Paris)
This is the first time that the French Supreme Administrative Court has had to decide on an application for annulment for refusing to report State measures which may qualify as state aid. The case at stake provided the French Supreme Administrative Court with an opportunity to specify the types (...)

The German Federal Court of Justice holds that the authority granting State aid must advise the guarantor of the aid recipient when allocating non notified aid and that, if the granting authority has omitted to do so, the guarantor is entitled to oppose an action for damages against the recovery (Landes Brandenburg)
European Commission - DG COMP (Brussels)
,
Maersk (Copenhagen)
Factual background On 1 December 2000, the applicant granted D. GmbH a subsidy of over € 1 million for the development of business premises in the greater Berlin area. The general collateral clauses in the official letter granting the aid stated in which cases the aid might have to be repaid by (...)

A Swedish Administrative Court rules that a sale of a hotel to former leaseholder was made below market price and annuls the decision but withou considering the EC State aid point of view (Petra Nyström)
Swedavia AB
,
General Court of the European Union (Luxembourg)
,
Öberg & Associés
Factual Background On June 17, 2008, the municipal council of Kristinehamn decided to sell the city hotel in Kristinehamn for 3 million SEK to the leaseholder of the hotel. Petra Nyström, a local resident, appealed the decision to the Administrative Court arguing, inter alia, that the decision (...)

A Swedish Administrative Court rules that a sale of real estate is not made below market price and thus can not be considered as State aid (Per Gillberg)
Swedavia AB
,
General Court of the European Union (Luxembourg)
,
Öberg & Associés
Factual Background On March 31, 2008, the municipal council of Årjänge decided to make a trade-off sale whereby it sold the real estate Årjäng Slätten 7 to Tom Hedefur, and in exchange the municipality bought the real estate Årjäng Åsen 1 from him. Local resident Per Gillberg appealed the decision to (...)

The European Commission intends to use State aid to offset higher costs resulting from the EU’s emission trading scheme
Van Bael & Bellis (Brussels)
According to a yet unpublished document that was presented to Member States by the French Presidency at the end of November, the Commission is preparing new criteria for assessing State aid in energy-intensive sectors such as chemicals and aluminium production. The intended measures are to be (...)

Procedures

The European Commission presents its preliminary findings on its inquiry into competition in the pharmaceutical sector
Van Bael & Bellis (Brussels)
On 26 September 2008, the European Commission announced that it will present its preliminary findings on its inquiry into competition in the pharmaceuticals sector at a conference on 28 November 2008. The final results are expected in the spring of 2009. The sector inquiry, which was launched (...)

The European Court of First Instance examines an appeal of a leading computer manufacturer against a Commission’s decision on abuse of dominant position (Intel)
Van Bael & Bellis (Brussels)
On 22 November 2008, details were published in the Official Journal of the European Union of an appeal brought by Intel to annul decisions of the Hearing Officer and the European Commission. The decisions relate to Article 82 EC proceedings regarding Intel’s alleged conduct in excluding its (...)

The Spanish Competition Authority consults on its draft fining guidelines
Van Bael & Bellis (Brussels)
On 21 November 2008, the Spanish Competition Authority published for consultation its draft Fining Guidelines for infringements of the competition rules (the “draft Fining Guidelines”). This public consultation will be open until 17 December 2008. The draft Fining Guidelines state that when (...)

The UK Court of Appeal’s judgment in the Marine Hoses cartel shows the interplay between UK criminal investigation and US plea agreement (Whittle, Allison and Brammar)
UK Competition and Markets Authority (CMA) (London)
The Marine Hoses Cartel has been a test case on several grounds: parallel and coordinated dawn raids by the European Commission, the OFT and the US DoJ; first criminal prosecution to be brought under the new Criminal Cartel Offence in the UK; use of DVD covertly recording of a cartel meeting (...)

The European Commission adopts its 2009 legislative and work programme
Van Bael & Bellis (Brussels)
On 5 November 2008, the European Commission adopted its 2009 legislative and work programme, announcing the main initiatives it intends to pursue in 2009. These initiatives include a review of the 1995 Notice on cooperation between national courts and the Commission in the State aid field, a (...)

The French Supreme Court rules that parties to a commitments procedure must have access to all documents on which the case-handler has relied and to all documents submitted to the Competition Council (Canal 9/Les Indépendants)
Vogel & Vogel
The highest commercial court in France has for the first time addressed the question of procedural safeguards for undertakings concerned during the commitments procedure laid down in article L. 464-2, I of the Commercial Code. The aim of the procedure is “to ensure that the undertaking ceases or (...)

The New Swedish Competition Act enters into force
Delphi (Stockholm)
,
Stockholm University
A new Swedish Competition Act entered into force on 1 November 2008. The new legislation means further harmonisation with EC competition rules and it also introduces a number of new features in order to enhance cartel enforcement. One of the new features is the introduction of disqualification (...)

Regulatory

The European Commission presents its preliminary results concerning the pharmaceutical sector inquiry raising competition concerns
European Commission - DG COMP (Brussels)
,
EU Delegation to the OECD and UNESCO (Paris)
,
European Commission - DG COMP (Brussels)
"Preliminary results of Commission pharmaceutical sector inquiry raise competition concerns"* On 28 November 2008, the Commission presented the preliminary findings of its sector inquiry into pharmaceuticals. The report shows that originator companies engage in practices that can contribute to (...)

The Spanish national competition commission publishes a number of reports on the telecoms market
Hogan Lovells (Madrid)
,
Allianz (Brussels)
The Spanish National Competition Commission (Comisión Nacional de la Competencia,hereinafter,"the CNC") published on 26 November 2008 a number of reports analysing the market definition and the competitive structure of the networks and electronic communication services markets in Spain ("the (...)

The Hellenic Competition Commission imposes measures on the petroleum industry aimed at restoring effective competition (Greek Petroleum and Motor Oil - Hellas - Corinth Refineries)
University of East Anglia - CCP (Norwich)
Background On 27 August 2008, the Hellenic Competition Commission (HCC) launched a series of public consultations on proposed measures which would restore effective competition in the Greek Petroleum Industry. A summary of views submitted during the consultation process was published on 13 (...)

The French Telecom Regulator holds that the incumbent cannot require to be provided with information on the wholesale access offer of the cable operator (France Télécom/Numéricable)
French Competition Authority (Paris)
Considering that the criterion of indispensability to achieve the objectives of the regulation was not satisfied, the French regulator rejected the France Télécom’s complaint based on the refusal of the cable operator to provide it with information on its wholesale access offer. The French (...)

All issues

  • Latest News issue 
  • All News issues
  • Latest Special issue 
  • All Special issues