November 2009

Anticompetitive practices

The China’s Banking Regulatory Commission (CBRC) issues pilot administrative measures for commercial banks to make equity investment in insurance companies
AnJie Law (Beijing)
A Look At the New Rule On Financial Integrated Operation: From the Perspective of Competition Law* On November 26, 2009, China’s Banking Regulatory Commission (CBRC) issued the Pilot Administrative Measures for Commercial Banks to Make Equity Investment in Insurance Companies (the “Measures”). (...)

The Higher Regional Court of Karlsruhe decides that sales via an internet auction platform can be prohibited in a selective distribution system which does not fall under Sec. 1 ARC/Art. 101 TFEU if the selection criteria are objective and applied in a non-discriminatory manner (Scout-Schulranzen)
Gleiss Lutz (Frankfurt)
On 25 November 2009, the Higher Regional Court of Karlsruhe confirmed a judgement of the Regional Court of Mannheim and therewith dismissed the appeal of the plaintiff. The question at stake was whether the defendant Scout had an obligation to supply an authorised distributor of a selective (...)

A German Court confirms judgment allowing a restriction on using auction websites in selective distribution
Van Bael & Bellis (Brussels)
In its judgment of 25 November 2009, the Higher Regional Court of Karlsruhe (the “Court”) upheld a judgment of the Regional Court of Mannheim which allowed the manufacturer of high quality school bags which operated a qualitative selective distribution system to prohibit its distributors from (...)

The Danish Competition Council adopts commitment decision to prevent exchange of cost information between industrial laundries (Textile Services Association)
Danish Competition and Consumer Authority (Copenhagen)
On 25 November 2009, the Danish Competition Council adopted a commitment decision, cf. Section 16 a of the Danish Competition Act, whereby the Textile Services Association undertook to cease the exchange of a cost index for industrial laundries and to disband the association’s cost-index (...)

The Turkish competition board investigates price fixing and non-compete provisions in franchising agreements (DiaSA/Complaining Franchisees)
Erdem & Erdem (Istanbul)
Two complaints were lodged against DiaSA by its franchisees alleging that the provisions and application of DiaSA’s franchise agreements are in violation of the Act on Protection of Competition Numbered 4054 (“Competition Act”). The Competition Board (“CB”) examined the price and non-compete (...)

The Canadian Competition Bureau takes action against a Manitoba-based resort company selling time share vacation properties for alleged deceptive marketing practices (Elkhorn Ranch & Resort)
Canadian International Joint Commission
Introduction Canada’s Competition Bureau (“Bureau”), an independent enforcement agency that assists the Commissioner of Competition (“Commissioner”) in protecting and promoting competition, announced on 23 November 2009 that Elkhorn Ranch & Resort Ltd (“Elkhorn”), a Manitoba-based company (...)

The UK Competition Appeal Tribunal clarifies timing rules for follow-on private antitrust actions for damages against cartel participants (BCL, BASF)
Morgan Lewis (London)
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4-5 Gray’s Inn Square
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Jones Day (London)
On 19 November 2009, the UK Competition Appeal Tribunal (“CAT”) confirmed the test it will apply when assessing whether to extend the time limit by which claimants may commence follow-on actions for damages before the CAT once there has been a finding of a breach of UK or EU competition law. The (...)

The Romania’s High Court of Justice upholds a NCA’s decision having imposed a fine for price fixing to a nonprofit organization (National Association of Dental Technicians)
Romanian Competition Council (Bucharest)
By its Civil Decision n° 5.236 of 19th of November, 2009, the Romanian High Court of Cassation and Justice (Înalta Curte de Casaţie şi Justiţie) has rejected the second appeal (recurs) of the National Association of Dental Technicians (NADT) - Asociaţia Naţională a Tehnicienilor Dentari - against the (...)

The Italian Competition Authority launches an investigation into possible anticompetitive agreements involving a trade association and international freight forwarders (Fedespedi)
European Commission
Italy: Antitrust Authority launched an Investigation into possible Agreements restricting Competition involving the Fedespedi Trade Association and 20 international Freight Forwarders On 18 November 2009, the Italian Competition Authority launched an investigation to ascertain the existence of (...)

The Swedish Competition Authority accepts a commitment, subject to penalty of a fine, from a trade association for laboratories to amend its general terms (Föreningen ackrediterade Laboratorier)
Vinge (Stockholm)
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Vinge (Stockholm)
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Vinge (Stockholm)
Introduction On November 16, 2009, the Swedish Competition Authority (“SCA“) accepted a commitment offered by Föreningen ackrediterade Laboratorier (“FaL”), a trade association for private laboratories, thereby closing its investigation about FaL’s general terms for laboratory services. Background (...)

The Spanish Competition Authority imposes over € 120 M fines to insurance companies charged of price-fixing in decennial insurance for new buildings (Compañías de Seguro Decenal)
Barros Letelier & Gonzales
On 12th November 2009, the Spanish NCA (Consejo de la Comisión Nacional de la Competencia – CNC Council) fined Asefa, Caser, Mapfre Empresas, Mapfre Re, Scor, Switzerland, Swiss Re and Munchener, for participating in an agreement and concerted practices aiming at setting minimum prices of (...)

The Dutch Competition Authority fines swimming pool chemicals distributors for market sharing (H.Fr.H. Breustedt Chemie)
European Commission
The Netherlands: Authority fines Dutch Swimming Pool Chemicals Distributors more than € 3 000 000 On 12 November 2009, the Netherlands Competition Authority (NMa) imposed total fines of € 3,107,000 on five Dutch swimming pool chemicals distributors for infringing both national competition law (...)

The Spanish Competition Authority imposes € 120 728 000 fines on insurance companies cartel for price fixing (Insurance Cartel)
European Commission
Spain: La Comisión Nacional de La Competencia (CNC) imposes € 120 728 000 in Fines on Insurance Companies’ Cartel On 12 November 2009, the CNC Council has fined Asefa, Mapfre Empresas/Mapfre Re, Caser, Switzerland/Swiss Re, Scor and Münchener for a cartel agreement to set minimum prices for (...)

The Spanish competition authority imposes the highest fine ever on several insurance companies (Asefa, Mapfre, Caser, Munich Re, Swiss Re and Scor)
European Court of Justice (Luxembourg)
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Garrigues
On 12 November 2009, the Spanish competition authority (Comisión Nacional de la Competencia, hereinafter the "CNC") imposed a total fine of €121 million on three Spanish insurance companies (Asefa, Mapfre and Caser) and some of the leading global reinsurers, (Munich Re, Swiss Re and Scor) for a (...)

The European Commission fines plastic additives manufacturers for price fixing and market sharing cartels (Akzo Nobel , Elementis, Elf Aquitaine, BASF)
European Commission - DG COMP
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European Commission - DG COMP
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European Commission - DG COMP
"The heat stabilisers cartels"* I. Introduction On 11 November 2009, the Commission adopted a prohibition decision against suppliers of tin stabilisers and ESBO/esters (two types of heat stabilisers) and one consultancy firm. The Decision found that they had operated two single and continuous (...)

The EU Commission fines cartellists in a plastic additives sector highlighting the risk of "facilitating" cartel participation (AC-Treuhand)
Morgan Lewis (London)
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Jones Day (London)
On 11 November 2009, the European Commission (the « Commission ») fined 24 companies a total of € 173 million for operating cartel arrangements in the plastic additive sector. The companies fixed prices, shared customers, allocated markets, and exchanged sensitive commercial information for tin (...)

The Polish Appeal Court annulls the judgment of the Court of Competition and Consumer Protection pointing out that joint buying groups require a more in-depth competition analysis even in cases of resale price maintenance (PSB, Gamrat)
Greenberg Traurig Grzesiak (Warsaw)
The Polish Appeal Court has quashed a Competition Court decision on procedural grounds pointing out that joint buying groups require a more in-depth competition analysis even in cases of resale price maintenance. On 10th November 2009, the Appeal Court issued a long awaited judgment concerning (...)

A US District Court finds sufficient ground for a claim on alleged illegal secret rebates, kickbacks and commissions, though it rejects the claim on collusive conduct on the market for sales of title insurance (California Title Insurance)
Sheppard Mullin (Los Angeles)
Strike Three: Plaintiffs Again Fail to Allege Facts of Collusion in Oligopoly Market* Rather than being "plus factors," allegations of interdependent industry structure simply demonstrate that the challenged conduct of defendant title insurers was as consistent with competition as with (...)

The Serbian Competition Authority advises the Government to amend regulation of the insurance services in order to preserve competition among insurers (Regulation of the insurance services sector)
University of Technology (Tallinn)
On 5 November 2009 the Serbian Competition Authority (KZK) issued an ex officio opinion regarding new regulation of the insurance sector brought about by the Law on Obligatory Insurance , which entered into force on 12/10/2009. KZK was of the opinion that new law substantially restricted (...)

The Irish Supreme Court provides observations on the conditions contained in Art. 101(3) TFEU and remits the appeal to the High Court for fuller consideration (Beef Industry Development Society & Anor)
Arthur Cox (Dublin)
Competition Authority v Beef Industry Developments Society Limited & Anor concerns a rationalisation agreement in the beef processing sector in Ireland. In 1998 a report (the McKinsey Report) found that there existed significant and substantial over-capacity in the beef industry and that (...)

The Swiss Competition Commission issues a prohibition order and fined three producers of medicine (treatment of erectile dysfunction) for publishing recommended prices leading to RPM (Pfizer/Eli Lilly/Bayer)
Agon Partners (Zurich)
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Zurich District’s Prosecutor
Description of the impugned case Three pharmaceutical manufacturers issued recommended retail prices (RRP) which were integrated into a widely used IT-Database or/and communicated to all resellers (e.g. pharmacies). 63% of all resellers adopted a pricing policy according to the price (...)

Unilateral Practices

The Mexican Federal Competition Commission imposes antitrust fine for refusal to share television content with rival (Grupo Televisa, Tele Cable)
Jones Day (Mexico)
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Jones Day (Mexico)
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Jones Day (Mexico)
On December 1, it was announced that the Mexican Federal Competition Commission (“Cofeco”) had imposed a fine of pesos $ 47.5 million (approximately US $ 3.7 million) on Grupo Televisa, which is controlled by Mr. Emilio Azcárraga Jean, for refusing to provide certain television content to a cable (...)

The Swedish Competition Authority argues for improvements to legal framework for re-use of public sector information for commercial purposes (Vidareutnyttjande av handlingar - genomförande av PSI-direktivet )
White & Case (Brussels)
In a government consultation response dated 25 November 2009, the Swedish Competition Authority argues that the legal framework enabling private companies to re-use information obtained from public sector entities requires essential improvements in order to truly promote a commercial market for (...)

The EU Commission closes proceedings against a telecom company (Qualcomm, Texas Instrument)
Van Bael & Bellis (Brussels)
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Practising Law Institute
On 24 November 2009, the Commission announced its decision to close its proceedings against Qualcomm Incorporated concerning an alleged breach of Article 82 EC. The investigation was opened on 1st October 2007. Although the Commission noted that the Qualcomm case raised important issues about (...)

The European Commission confirms sending statement of objections to a financial company alleging unfair pricing (Standard & Poor’s)
Van Bael & Bellis (Brussels)
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Practising Law Institute
On 19 November 2009, the Commission announced that on 16 November 2009 it had sent a Statement of Objections to Standard & Poor’s (“S&P”) for an alleged violation of Article 82 EC. According to the Commission’s press release, S&P is the sole-appointed National Numbering Agency (“NNA”) (...)

The European Commission sends SOs following a complaint lodged by several associations representing investors against financial service company (Standard & Poor’s)
Ashurst (Milan)
Commission sends statement of Objections to Standard & Poor’s* On 16 November 2009 the Commission sent a Statement of Objections (“SO”) to Standard & Poor’s (“S&P”), a division of McGraw-Hill Companies, Inc. The SO follows a complaint lodged by several associations representing (...)

The European Commission opens formal proceedings in the real-time market datafeeds sector (Thomson Reuters)
Van Bael & Bellis (Brussels)
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Practising Law Institute
On 10 November 2009, the Commission announced that it was opening formal antitrust proceedings against Thomson Reuters regarding its practices in the area of real-time market datafeeds. In particular, the Commission will investigate whether customers or competitors are prevented from (...)

The French National Competition Authority dismisses a claim for predatory pricing under Art. 82 EC and article L. 420-2 of the French commercial Code (Chep France)
White & Case (Paris)
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French Competition Authority (Paris)
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Novartis (Rueil-Malmaison)
Background The Competition Authority (thereafter “Authority”) dismisses alleged practices of predatory pricing and discriminatory practices in the market for renting of plastic bins and pallets in France implemented by the leader in the French market, Chep France (hereafter “Chep”), a subsidiary (...)

The Lithuanian Competition Council for the third time finds the State controlled airport guilty of abuse of a dominant position in operating airport facilities (Vilnius Airport / Baltic ground services)
Sorainen (Vilnius)
On 5 November 2009 the Lithuanian Competition Council (LCC) delivered its third infringement decision, in a two-year period, against the Vilnius international airport operator, State Enterprise Tarptautinis Vilniaus oro uostas for (TVOU), for the anti-competitive practice of tying the service (...)

The European Commission market tests commitments proposed by the French incumbent operator concerning French electricity retail market (EDF)
Van Bael & Bellis (Brussels)
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Practising Law Institute
On 4 November 2009, the Commission announced that it was launching a market test of commitments offered by French energy company EDF to address allegedly abusive long-term contracts entered into by EDF. The move follows the sending of a Statement of Objections to EDF in December 2008. The (...)

The Italian Milan Court of Appeal issues an injunctive relief against the national football league for illegitimate award procedures of TV rights for live broadcasts of soccer matches (Conto TV/Lega Calcio)
Italian Competition Authority
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University Luiss Guido Carli - GRIF (Rome)
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University Luiss Guido Carli - GRIF (Rome)
Introduction CONTO TV S.r.l. (CONTO TV) is a small broadcasting company operating satellite TV in Italy. LEGA CALCIO is the Italian Soccer Association, entrusted by the Italian law (Law n. 106/2007 and Legislative Decree n. 9/2008) with the task of selling soccer matches audio-television rights (...)

The New York Attorney General files a complaint alleging that the leading microprocessors manufacturer violated Section 2 of the Sherman Act by engaging in a pattern of illegal conduct intended to maintain its monopoly power and profits in the market for x86 microprocessors (Intel)
University College London
On November 4, 2009, Andrew Cuomo, the Attorney General of New York (AG), filed a complaint in Delaware District Court alleging that Intel Corporation (Intel) violated Section 2 of the Sherman Act and corresponding state antitrust statutes by engaging in a pattern of illegal conduct intended to (...)

Mergers

The French Competition Authority clears, under conditions, a merger in the poultry meat sector (LDC / Arrivé)
French Competition Authority (Paris)
Press Release published on the official website of the French Competition Authority. Subject to various conditions, the Autorité de la concurrence authorises the acquisition of the Arrivé group by the LDC group.* The Autorité de la concurrence has closely examined the LDC group’s acquisition of (...)

The Portuguese Competition Authority prohibits acquisition of ground handling services provider by an airline (TAP)
Van Bael & Bellis (Brussels)
According to a press release of 20 November 2009, the Portuguese Competition Authority has prohibited the acquisition by Portuguese airline TAP of Serviços Portugueses de Handling, a ground handling services provider. The Competition Authority held that Serviços Portugueses de Handling already (...)

The Romanian Competition Council carries out dawn raid on suspicion of “gun-jumping” infringement (Advent, Ozone Laboratories)
Van Bael & Bellis (Brussels)
According to a press release of 19 November 2009, the Romanian Competition Council carried out unannounced inspections (so-called “dawn raids”) at the premises of Advent and Ozone Laboratories, in the framework of its investigation of a notified merger between these two companies. Although the (...)

The Portuguese Competition Authority prohibits an acquisition in the airport handling services market and orders share divestiture (GroundForce/TAP)
University College London
The competition authority in Portugal (Autoridade da Concorrência - AdC) decided last November 19, 2009, after investigation, to prohibit the acquisition by TAP - Transportes Aéreos Portugueses, S.A (TAP) of the exclusive control of SPdH - Serviços Portugueses de Handling,S.A. (SPdH), by acquiring (...)

The Turkish Competition Authority does not permit an acquisition as it creates and strengthens a dominant position in the alcoholic beverages market (Acquisition of Burgaz Alcoholic by Mey Alcoholic)
Boyner
Decision Mey Alcoholic Beverages Industry and Trade Inc. (Mey Alcoholic) made an application seeking a clearance for the acquisition of Burgaz Alcoholic Beverages Commercial and Economic Entity (Burgaz Alcoholic) which was offered for sale by the Turkish Savings Deposit Insurance Fund. The (...)

The Turkish Competition board grants conditional authorization for the complete acquisition of Financière Lafarge by the Army Solidarity institution
Erdem & Erdem (Istanbul)
The Turkish Competition Board (“CB” or “Board”) authorised the acquisition by the Army Solidarity Institution (OYAK) of the shares in Lafarge Aslan Çimento A.Ş. (“Lafarge Aslan”), Lafarge Ereğli Çimento San. ve Tic. A.Ş. (“Lafarge Ereğli”) and Lafarge Beton A.Ş. (“Lafarge Beton”) and registered under (...)

The European Commission approves subject to remedies acquisition in the Belgian electricity market (EDF, Segebel)
European Commission - DG COMP
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CRA International (Brussels)
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European Commission - DG COMP
"EDF/Segebel (SPE) - More power to boost competition in Belgian energy markets"* I. Introduction In September 2009, the Commission received a notification of a proposed concentration whereby Electricité de France («EDF») would acquire from Centrica, a UK energy company, a 100% stake in Segebel (...)

The Serbian Competition Authority clarifies that if it does not issue individual merger decision within the specified timeframe, the notified merger should be considered prohibited (DELTA M)
University of Technology (Tallinn)
On 15 October 2009 DELTA M. d.o.o. (DELTA M) , Serbian company with operations in agribusiness, food processing, retail, distribution, automotive business, real estate development and financial brokerage applied to the Serbian Competition Authority (KZK) asking for clarification of the merger (...)

The Serbian Government adopts new merger regulation and new guidelines for the definition of the relevant market
University of Technology (Tallinn)
On 1 November 2009 the Serbian Competition Authority (KZK) began to apply the new Law on Protection of Competition. As a result of the substantial changes and introduction of new legal institutes, Serbian legislator entrusted the Government with the task of adopting new secondary regulations, (...)

State Aid

The European Court of First Instance dismisses an appeal in a State aid case in the telecommunications sector (France Télécom)
Van Bael & Bellis (Brussels)
On 30 November 2009, the Court of First Instance (now the General Court (the “GC”)) issued a judgment dismissing the appeal lodged by France Télécom and France against the decision of the Commission which found that France Télécom had received unlawful State aid in the form of a special tax regime (...)

The EU Court of First Instance dismisses an appeal lodged by Germany against the Commission’s decision ordering Germany to provide information about a State aid scheme that fell within the scope of Regulation 70/2001, which provides an exemption from notification for certain aid for SMEs (Germany v. Commission)
Van Bael & Bellis (Brussels)
On 25 November 2009, the Court of First Instance (now the General Court (the “GC”)) dismissed an appeal lodged by Germany against the decision of the European Commission ordering Germany to provide information about a State aid scheme that fell within the scope of Regulation 70/2001, which (...)

The European Commission finds that operating aid granted to aluminium producer by Italy is incompatible with EU State aid rules (Alcoa)
European Commission - DG COMP
"State aid: main developments between 1 September and 31 December 2009"* After an in-depth investigation opened in July 2006, the European Commission found that operating aid granted to aluminium producer Alcoa by Italy since 2006 was incompatible. The preferential electricity tariffs that (...)

The European Commission endorses UK restructuring plan in favor of a UK bank (Lloyds Banking Group)
European Commission - DG COMP
"State aid: main developments between 1 September and 31 December 2009"* Lloyds Banking Group is the entity resulting from the acquisition of HBOS by Lloyds TSB in January 2009. In 2008, HBOS was on the brink of bankruptcy as a result of risky lending and heavy dependence on wholesale funding. (...)

The European Commission takes a negative decision in a case on State aid concerning preferential electricity tariffs for energy-intensive users (Alcoa)
European Commission - DG COMP
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European Commission - DG COMP
Commission takes negative decision in the Alcoa case I. Introduction Between 2007 and 2009, the Commission had to take decisions in a number of State aid cases concerning preferential electricity tariffs for energy-intensive users. The Alcoacase, decided in November 2009, undoubtedly had the (...)

Procedures

The Hellenic Competition Commission adopts new simplified forms for post-merger notification and the registration of agreements
Zepos & Yannopoulos
The Hellenic Competition Commission (HCC) adopted the decisions 468/VI/2009, 469/VI/2009 and 470/VI/2009 on 27 November 2009 concerning the simplification of forms for post-merger notification and for the registration of agreements, following the amendment of the Act 703/1977 regarding the (...)

The Greek Competition Authority adopts new forms for post-merger notification and registration of agreements both for purposes of mapping the market
European Commission
Greece: New Notice on Enforcement Priorities and Adoption of new Forms On 27 November 2009, the HCC adopted revised Forms for (a) post-merger notification and (b) the registration of agreements, both for purposes of mapping the market (as defined in articles 4a and 21 of Law 703/77 (...)

The Italian Administrative Supreme Court upholds a tribunal judgment which partially annulled the Italian Competition Authority’s commitment decision for excess of power (Federazione Italiana Sport Equestri)
Bonelli Erede (Rome)
http://www.giustizia-amministrativa.it/webcds/ElencoSentenze.asp By its judgment delivered on 11 November 2009, the Italian Last Instance Administrative Court (“Consiglio di Stato”) upheld the judgment of the Court of First Instance (“Tar Lazio”) which had annulled the Italian Competition (...)

The European Ombudsman criticises an investigation of the Commission (Intel)
Van Bael & Bellis (Brussels)
In a decision dated 18 November 2009, the European Ombudsman found that the Commission had committed an act of maladministration in its investigation of Intel’s alleged breach of Article 82 EC. In May 2009, the Commission imposed a fine of € 1.06 billion on Intel for abusing its dominant (...)

The Paris Court of Appeal overturns a decision of the NCA for excessive duration of the proceedings for the first time ("Perfumes" case)
Hewlett Packard (Boulogne-Billancourt)
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Christian Louboutin
In a ruling dated 10 November 2009, the Paris Court of Appeal overturned a decision of the national competition authority (the "Authority") for excessive duration of the proceedings for the first time. This decision of the Authority related to alleged anticompetitive practices by several (...)

Regulatory

The European Parliament adopts telecoms reform package
Van Bael & Bellis (Brussels)
On 25 November 2009, the European Parliament formally approved the “Telecoms Reform Package”, proposed by the Commission in November 2007, to reform the EU’s current regulatory framework for electronic communications. In a press release issued on the same day, the Commission has welcomed the final (...)

The French Competition Authority issues an opinion on the role of train stations, intermodality and competition in transportation
French Competition Authority (Paris)
Press Release published on the official website of the French Competition Authority. The Autorité de la concurrence sets out the conditions for a successful introduction of competition in the passenger rail transport sector.* Directive 2007/58/EC of 23 October 2007 calls for the liberalization (...)

The French Competition Authority issues its first ex officio opinion on competition in the railway sector
European Commission
France: Autorité de la concurrence issues its first ex-officio Opinion on Competition in the Railway Sector and an Opinion on the Dairy Sector Pursuant to the 2009 competition law reform, the Autorité de la concurrence was entrusted with the power to issue ex officioopinions on any competition (...)

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