November 2012

Anticompetitive practices

The Slovak Anti-Monopoly Office proposes the introduction of a new section into the Act on Protection of Economic Competition law giving natural persons a financial incentive for whistleblowing
BPV Braun Partners
Slovakia: Cash Incentives to Whistleblowers?* At the end of 2012 the Slovak Antimonopoly Office presented its future plans for public discussion. Various aspects such as the announced prioritisation of antitrust enforcement, the incentives for settlement of antitrust cases, the establishment (...)

The Turkish Competition Board submits to public consultation a draft guidelines relating to horizontal cooperation agreements including the exchange of information between competitors
Erdem & Erdem (Istanbul)
The exchange of information between competitors is not regulated under Turkish law. This subject was recently handled within the Guidelines Project on the Application of Articles 4 and 5 of the Act No. 4054 on the Protection of Competition in Horizontal Cooperation Agreements (“Guidelines”). (...)

The EU General Court issues judgment on tariff arrangement within payment card cartel (Groupement des Cartes Bancaires)
Van Bael & Bellis (Brussels)
On 29 November 2012, the General Court (“GC”) handed down its judgment on the appeal by Groupement des Cartes Bancaires (“GCB”) against a Commission decision finding that GCB restricted competition with certain fees and tariffs which hindered the issuance of payment cards in France at (...)

The England and Wales Court of Appeal allows price-fixing damages claims brought by an Irish utility service provider against a British industrial bag manufacturer based on Article 5(3) of the Brussels I Regulation (Bord NA Mona)
Blackstone Chambers
Subsidiaries as “branches” for undertakings: a new route to jurisdiction under Article 5(5) of the Brussels Regulation?* Stand alone, follow on and hybrid damages claims arising out of multijurisdictional cartels are generating some of the most novel and interesting current problems in conflicts (...)

The England and Wales Court of Appeal refuses to revive private damages claims against a subsidiary of the addressee of the graphite cartel EC decision (Mersen)
Blackstone Chambers
Subsidiaries as “branches” for undertakings: a new route to jurisdiction under Article 5(5) of the Brussels Regulation?* Stand alone, follow on and hybrid damages claims arising out of multijurisdictional cartels are generating some of the most novel and interesting current problems in conflicts (...)

The Turkish Competition Authority imposes fines on automobile dealers for fixing prices on the market for sales of new cars and after-sales service (Toyota dealers)
The TCA Fined Toyota Dealers* According to the press release published yesterday (23 November 2012), the TCA imposed fines on nine Toyota dealers that are active in Istanbul. Total amount of the fines is 3.942.906,72 TL about 1.714.000 Euros. It was held by the TCA that infringement was (...)

The Japan Fair Trade Commission issues cease and desist orders and imposes surcharges on bidders for bid rigging on the automotive parts market (Mitsubishi Electric)
Japan Fair Trade Commission (Tokyo)
The JFTC Issued Cease and Desist Orders and Surcharge Payment Orders to Participants in Bid-rigging Conspiracies for Automotive Parts* The Japan Fair Trade Commission (JFTC) issued cease and desist orders and surcharge payment orders based on Article 7(2) and Article 7-2(1) of the Antimonopoly (...)

The Danish Competition and Consumer Authority publishes a report on mobile phone subscribers and insurance customers’ switching of service providers
European Commission (Brussels)
Denmark: Non-transparent Markets make Switch of Service Providers difficult* On 22 November 2012, the Danish Competition and Consumer Authority (DCCA) published a report on mobile phone subscribers and insurance customers’ switching of service providers. The main conclusions are: • Every (...)

The Macedonian High Administrative Court upholds the decision of the Competition Authority concerning anticompetitive practices on the market for mandatory technical certification of motor vehicles (Macedonian Drivers Union)
University of Technology (Tallinn)
On 22 November 2012 the Macedonian High Administrative Court (VUS) upheld the infringement decision of the Macedonian Competition Authority (KZK) where the latter found that Macedonian Drivers Union (SVM) has infringed national equivalent of Article 101(1) TFEU by fixing prices for the (...)

The Jiangsu Administration for Industry and Commerce investigates unfair one-sided clauses while monopoly conduct in online shopping becomes a regulatory focus
University of Melbourne
,
China Competition Bulletin (Beijing)
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Institute of American Studies
The Jiangsu Administration for Industry and Commerce (Jiangsu AIC) investigated one-sided unfair clauses in 12 industries. The 12 industries were water supply; electricity supply; gas supply; telecommunication services; cable television; real estate transactions; interior decoration and (...)

The Dutch Competition Authority fines taxi companies for bid rigging arrangements (Taxivervoer Rijnmond)
Smeets Van Empel advocaten (Amsterdam)
Introduction Following its investigations in 2009, the Dutch Authority for Consumers and Markets (hereinafter “ACM”) issued fines to several Dutch taxi companies for infringements of the Dutch cartel prohibition. According to the ACM the Rotterdamse Mobiliteit Centrale B.V. (hereinafter “RMC”) (...)

The Danish Appeals Tribunal gives judgment on anti-competitive collective boycott in Danish real estate market (Boliga.dk)
Van Bael & Bellis (Brussels)
On 20 November 2012, the Danish Appeals Tribunal handed down a judgment on appeals brought by six Danish cooperative chains of independent real estate agents against a decision by the Danish Competition and Consumer Authority (“DCCA”) of 25 January 2012 finding that the companies had been (...)

A US Court of Appeals for the Federal Circuit provides additional guidance regarding the limits on standing to bring a Walker Process antitrust claim against a patent owner (Ritz Camera & Image v. SanDisk)
Gill Jennings & Every LLP
The Court of Appeals for the Federal Circuit recently provided additional guidance regarding the limits on standing to bring a Walker Process antitrust claim against a patent owner and arguably expanded the class of parties eligible to bring such a claim. Under the Supreme Court’s holding in (...)

The Hellenic Competition Commission strikes down indirect attempt at RPM by French car manufacturer (Em. Psispsikas & SIA v. MAVA Emporoviomihaniki)
University College London
The complainant company, Em. Psispsikas & SIA E.E, was previously a RENAULT car distributor and member of the official network of the company, MAVA Emporoviomihaniki A.E. MAVA was an importer and exclusive agent of vehicles and spare parts from the French company RENAULT SA in Greece. Em. (...)

The Czech NCA imposes mild fines under national law in the waste management cartel (A.S.A., van Gansewinkel, AVE, SITA)
Government of the Czech Republic
,
European Court of Justice (Luxembourg)
By its decision of 19 November 2012, the Czech Office for the Protection of Competition fined four companies for their participation in agreements aimed at market sharing on the waste management market and, for two of the participants, on the road maintenance market. According to the Office, (...)

The Spanish Competition Council fines a car producer for anticompetitive practices (Mazda Automóviles)
European Commission (Brussels)
Spain: The Comisión Nacional de la Competencia fines Mazda Automóviles de España* In its Resolution of 16 November 2012, the Council of the Comisión Nacional de la Competencia (CNC) established that Mazda Automóviles de España, SA (Mazda) concluded agreements and put practices into place with its (...)

The President of the EU General Court suspends the Commission’s decision in order to prevent the publication of confidential information contained in a cartel decision (Akzo, Degussa)
Mircea & Partners (Bucharest)
I. Introduction The dissemination of historical information can still imply certain risks for the public or private interest and require confidential treatment. The present case refers to an action for annulment comprising a claim of confidential treatment of the information contained by (...)

The Romanian Competition Council fines two companies for bid rigging practices in the context of a gas transport pipeline tender procedure (T.M.U.C.B.)
DLA Piper Dinu SCA (Bucharest)
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DLA Piper Dinu SCA (Bucharest)
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DLA Piper Dinu SCA (Bucharest)
Introduction The Romanian Competition Council ("RCC") published in February 2013 a decision ("RCC Decision") pursuant to an investigation concerning an alleged infringement of art. 5 of Competition Law (mirroring the provisions of art. 101 TFEU) in the context of several public procurement (...)

The Romanian Competition Council sanctions bid rigging practices in the natural gas sector following information received from criminal authorities (Condmag, Inspet, Transgaz)
DLA Piper Dinu SCA (Bucharest)
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DLA Piper Dinu SCA (Bucharest)
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DLA Piper Dinu SCA (Bucharest)
Introduction The Romanian Competition Council ("RCC") issued in November 2012 a decision ("RCC Decision") pursuant to an investigation concerning alleged bid rigging practices during the tenders organized by Transgaz – the Romanian operator for the transportation of natural gas - and Romgaz – (...)

The Competition Authority of the Republic Serbia has exempted for a period of three years two insurance companies from the prohibition on restrictive agreements (Dunav osiguranje, Delta Generali osiguranje)
Kinstellar (Belgrade)
On 8 November 2012 the Commission for the Protection of Competition of the Republic of Serbia (the “Competition Authority”) issued a decision exempting two Serbian insurance companies, Dunav osiguranje a.d.o. Beograd (“Dunav”) and Delta Generali osiguranje Beograd (“Delta”), from the ban on engaging (...)

The Spanish Competition Authority fines shipping companies with a total amount of € 88,5 M for participating in a cartel in the passenger and cargo maritime transport market between the Spanish peninsula and Morocco (Compañía Trasmediterránea, Europa Ferrys SA, Cenargo España, SLU...)
University of Castilla-La-Mancha (UCLM)
The Council of the CNC has fined six shipping groups over € 88.5 million for having participated in a cartel in the market of the maritime transport between the Spanish Peninsula and Morocco and between 2002 and 2010. On March, 15, 2011, the Investigations Division of the Spanish Competition (...)

The Spanish Competition Authority fines six shipping groups for cartel in maritime transport between Spanish Peninsula and Morocco (Maritime Transport Cartel)
European Commission (Brussels)
Spain: The Comisión Nacional de la Competencia fines six Shipping Groups for Cartel in Maritime Transport between Spanish Peninsula and Morocco * In its Resolution of 7 November 2012, the Council of the Comisión Nacional de la Competencia (CNC) found that six shipping companies active in the (...)

The Polish Office of Competition and Consumer Protection finds the agreements between IT software company and its distributors as breaching competition law on the basis of EC 330/2012 (Soneta)
SADKOWSKI I WSPÓLNICY RADCOWIE PRAWNI I ADWOKACI
On November 7, 2012, Polish Office of Competition and Consumer Protection found the agreement entered into by the creator of software, Soneta with Distributors which contained a resale price maintenance to be limiting competition in the companies’ management software industry. The distribution (...)

The EU Court of Justice rules that the principle of effective judicial protection does not preclude the Commission from bringing on behalf of the European Union an action for damages before a national court (Europese Gemeenschap/Otis)
Vrije University of Amsterdam
The Commission’s double role in competition law enforcement: the Otis case* On November 6th, the Grand Chamber of the CJEU issued a ruling in Case C-199/11 (Europese Gemeenschap v Otis NV and Others). The case concerns the principle of effective judicial protection (laid down in Article 47 of (...)

The Bulgarian Commission on Protection of Competition fines members of vehicles distribution network (Hyundai Motor)
European Commission (Brussels)
Bulgaria: The Commission on Protection of Competition fines Members of Distribution Network for Hyundai Motor Vehicles* On 6 November 2012, the Bulgarian Commission on Protection of Competition (CPC) imposed fines amounting to approximately € 8 000 000 on the authorised importer of Hyundai (...)

The EU Court of Justice confirms the Commission’s authority to represent the EU in bringing an action for damages before a national court based on an infringement of the Article 101 TFEU (Otis, Kone, Schindler and ThyssenKrupp)
Mircea & Partners (Bucharest)
I. Introduction In the field of competition law the Commission plays multiple roles and acts against several forms of anticompetitive activities prohibited by Articles 101 and 102 TFEU, if the interstate trade criterion is satisfied. National competition authorities may apply the above named (...)

The Italian Competition Authority opens formal proceedings against four insurance companies for alleged bid-rigging (Assicurazioni Generali, INA Assitalia, Unipol Assicurazioni and Fondiaria)
European Commission (Brussels)
Italy: The Competition Authority opens Formal Proceedings against four Insurance Companies for alleged Bid-Rigging* At the end of November 2012, the Italian competition authority (ICA) conducted inspections at the headquarters of four insurance companies on suspicion of possible (...)

Unilateral Practices

The Mauritius Competition Authority follows UK Competition Commission’s lead in examining banks’ practices in payment protection insurance and credit life insurance (Bank One, Barclays Bank)
Norton Rose Fulbright (London)
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Falcon & Hume
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Norton Rose Fullbright (Sidney)
Given burgeoning competition law regimes in Africa, international and local African lenders, as well as retailers extending credit, will have to reconsider their approach to offering credit life insurance with their loans in many African jurisdictions. This is evident from recent judgments by (...)

The Belgium Competition Council decides there are no grounds for action against the incumbent telecom operator for the launch of new tariff plan for fixed telephony services (Belgacom)
European Commission (Brussels)
Belgium : The Belgium Competition Council decides there are no grounds for action against Belgacom for the launch of Happy Time Tariff Plan for fixed Telephony Services* On 29 November 2012, the Competition Council (the Council) concluded that on the basis of the information in its possession (...)

The Belgian Competition Council’s College of Prosecutors dismisses complaints against telecom operator for abusing its dominant position in the market for fixed telephony, due to margin squeeze on its "Happy Time offer" (Tele2 / Belgacom)
Liège University - IEJE
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Altius (Brussels)
I. The Parties Belgacom S.A. is the incumbent operator on the Belgian telecom market and former historical operator. In 2005, Tele2 was a 100% subsidiary of a Swedish company. In the meantime, this company was sold to KPN, a Dutch company, in 2007. II. The Facts Access to the telecommunication (...)

The Irish High Court finds that the State does not operate as an “Undertaking” in the use of its ambulance fleet for emergency services and for transport of public patients (Lifeline)
Arthur Cox (Dublin)
This case concerned a private undertaking, Lifeline Ambulance Services Limited (“Lifeline”) that operates a fleet of ambulances and is engaged in the business of providing transport for hospital patients and others in need of such services brought against the State owned Health Service Executive (...)

The Luxembourg Competition Council accepts commitments in press distribution sector (Valora)
European Commission (Brussels)
Luxembourg: The Competition Council accepts Commitments in Press Distribution Sector* By its decision of 23 November 2012, the Competition Council has accepted commitments by Valora Luxembourg s.à.r.l. (Valora), the Luxembourgish subsidiary of Valora Holding SA (Switzerland), that address the (...)

The French Competition Authority accepts commitments proposed by editor of printed and online directories and puts an end to its investigations in the market of sale of advertising space in those directories (PagesJaunes)
White & Case (Paris)
In a decision issued on November 22, 2012, the French Competition Authority (hereafter “the FCA”) accepted the commitments proposed by PagesJaunes SA, thereby putting an end to a procedure following complaints for abuse of dominant position, without imposing any fine. PagesJaunes is the leader (...)

The Israeli Restrictive Trade Practices General Director declares certain entities "monopolies" in the supply of non-liquefied natural gas (Noble Energy Mediterranean, Delek Drilling and Avner Oil & Gas Exploration)
Eshel, Ashlagi, Rozent Law Offices (Tel Aviv)
Introduction On November 13, 2012, the Restrictive Trade Practices General Director (the “General Director”) declared a few entities engaged in the exploration, production and sale of natural gas - Noble Energy Mediterranean, Delek Drilling and Avner Oil & Gas Exploration (both of the Delek (...)

The Hellenic Competition Commission accepts commitments from dominant incumbent gas company (DEPA)
European Commission (Brussels)
The Hellenic Competition Commission accepts commitments from dominant Greek incumbent gas company* In a landmark decision of 12 November 2012, the Hellenic Competition Commission (HCC) accepted commitments offered by DEPA, the Greek incumbent gas supplier, with a view to speeding up the (...)

The Romanian Competition Authority makes binding commitments made by the Central Depository on registry services to securities issuers (Depozitarul Central)
Nestor Nestor Diculescu Kingston Petersen (Bucharest)
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Nestor Nestor Diculescu Kingston Petersen (Bucharest)
Since 2010, following the amendment of the Romanian Competition Law no.21/1996, the Romanian Competition Council (“RCC”) has been able to accept legally binding commitments offered by companies in order to address the concerns relating to potential infringements of competition law. The (...)

The Regional Court in Brno takes a strict view on relevant market definition by the Office for Protection of Competition (Student Agency)
Weil, Gotshal & Manges (Prague)
On 9 November 2012, Regional Court in Brno cancelled the decision of Chairman of the Office for Protection of Competition ("Office") in a case concerning an alleged abuse of dominant position in the form of predatory pricing by Student Agency in response to an entry by competing bus company (...)

The Macedonian High Administrative Court upholds the decision of the Macedonian Competition Authority prosecuting the incumbent telecom operator for establishing high prices for its digital lines leased to the rival Internet providers (Macedonian Telecom)
University of Technology (Tallinn)
On 7 November 2012 the Macedonian High Administrative Court (VUS) upheld the infringement decision of the Macedonian Competition Authority (KZK) where the latter found that the incumbent telecom operator Macedonian Telecom has infringed national equivalent of Article 102 TFEU by establishing (...)

The Competition Authority of Bosnia and Herzegovina finds an abuse of a collective dominant position on the market of fast money transfer services (Western Union)
University of Technology (Tallinn)
On 6 November 2012 the Competition Authority of Bosnia & Herzegovina (KV) found that four Western Union agents have abused their collective dominant position on the market for fast money transfer services by including the exclusivity clauses in their cooperation agreements with the banks (...)

The Cypriot Commission for Protection of Competition imposes administrative fines for refusal to provide direct access to the SMS Centre (Thunderworx/CYTA)
Commission for the Protection of Competition of the Republic of Cyprus
The Commission for the Protection of Competition (CPC) decided to impose on the Cyprus Telecommunications Authority (CYTA) administrative fines amounting to €960,000 regarding the infringement of sections 6(1) (b) and 6(1) (c) of the Protection of Competition Law (L. 13(I)/2008) in relation to (...)

The Competition Commission of India holds that a big production house movie does not constitute a separate relevant product market (Ajay Devgan Films v Yash Raj Films Private Limited & Ors)
University of Tilburg - Center for Law and Economics (TILEC)
Background In a recent ruling the Competition Commission of India (CCI), in the matter of Ajay Devgan Films v. Yash Raj Films Private Limited &Ors, refused to accept that a big production house movie may constitute a separate relevant product market in itself. It held that no enterprise (...)

Mergers

The Hungarian Competition Authority refines the notion of interdependent transactions and its method of establishing relevant product and geographic market of mergers in the retail sector (Copé /Arany Hatos and Aranyhíd-Coop)
Dentons (Budapest)
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Hungarian Competition Authority (Budapest)
I. Facts COPÉ Vagyonhasznosító és Szolgáltató Zrt. („COPÉ”) acquired indirect sole control over ARANYHÍD-COOP Kereskedelmi Zrt. („ARANYHÍD-COOP”) through a purchase of a share package carrying 33.2 percent of the voting rights of the ARANYHÍD-COOP and 100 percent of the shares of ARANY HATOS Üzletviteli és (...)

The US FTC jointly with the Pennsylvania Attorney General oppose proposed acquisition in the health care industry (RHS / SIR)
Sheppard Mullin (Los Angeles)
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Sheppard Mullin (Century City)
Large General Acute-Care Hospital Abandons Acquisition Of 15-Bed Surgical Specialty Center As A Result Of FTC Challenge* Just three days after the Federal Trade Commission, jointly with the Pennsylvania Attorney General, issued an administrative complaint challenging Reading Health System’s (...)

The US DoJ imposes a divestiture and hold separate order before approving an acquisition in the market for electric power (Exelon / Constellation)
Cleary Gottlieb Steen & Hamilton (Cologne)
,
Cleary Gottlieb Steen & Hamilton (Washington)
Introduction Early in his Second Inaugural Address, President Obama declared: “Together, we discovered that a free market only thrives when there are rules to ensure competition and fair play”. With this statement, President Obama became just the sixth president to make reference to the (...)

The US FTC requires FRAND commitments as part of merger settlement in the industry of automotive diagnostics (SPX / Bosch)
Baker McKenzie
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Dechert (Washington)
FTC Requires FRAND Commitments as Part of Merger Settlement with Broad Implications* On November 26, 2012, the FTC and Robert Bosch GmbH entered into a Consent Agreement that resolved the FTC’s inquiry into Bosch’s $1 billion acquisition of SPX Services. As part of the Consent Agreement the FTC (...)

The US FTC orders divestitures plus novel standard essential patent remedy in a merger between two leading suppliers of air conditioning recycling products (Bosch/SPX)
Goodwin Procter (Washington)
On November 26, 2012, by a 3-2 vote, the United States Federal Trade Commission (FTC) announced a settlement in connection with the acquisition of SPX Service Solutions US, LLC (SPX) by Robert Bosch GmbH (Bosch). The settlement is noteworthy not because it contained a predictable requirement to (...)

The US FTC proposes acquisition consent agreement to resolve unprecedented allegations on enforcement of standards-essential patents (Bosch / SPX)
Jones Day (Washington)
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Jones Day (Washington)
,
Jones Day (Sillicon Valley)
The U.S. Federal Trade Commission this week announced a highly unusual proposed consent agreement reached with Robert Bosch GmbH ("Bosch") that permits Bosch’s acquisition of SPX Service Solutions U.S. LLC ("SPX Service Solutions") from SPX Corporation ("SPX") to proceed. More significantly, it (...)

The Serbian Competition Authority clears a retail merger in a phase II procedure with imposition of behavioural remedies (Stampa Sistem/Futura Plus)
University of Technology (Tallinn)
On 22 November 2012 the Serbian Competition Authority (KZK) has cleared in a Phase II procedure a concentration in the market for retail trade in kiosks of cigarettes and other tobacco products, newspapers and prepaid cards of mobile phone operators. The specified concentration was cleared with (...)

The German Competition Authority prohibits joint venture in chemicals trading sector (Chemie-Vertrieb)
European Commission (Brussels)
Germany: The Bundeskartellamt prohibits Joint Venture in Chemicals Trading Sector* On 21 November 2012, the Bundeskartellamt (BKartA) issued a prohibition decision concerning a joint venture of two chemicals trading companies. The joint venture in question, CVH Chemie-Vertrieb GmbH & Co (...)

The Italian Antitrust Authority interprets merger filing rules
Macchi di Cellere Gangemi (London)
,
Jones Day (Milano)
Following an amendment to Italian antitrust law, to be effective in 2013, Italy’s antitrust authority now has clarified that, for transactions that are signed in 2012 but will not be closed until 2013, it is the new 2013 rule that determines whether a premerger notification must be filed. In (...)

The French Competition Authority clears a merger in the parcel delivery sector (Calberson / Sernam)
French Competition Authority (Paris)
Press Release published on the official website of the French Competition Authority. The Autorité de la concurrence clears the takeover of certain Sernam assets by Calberson* Calberson S.A.S. (Calberson) has informed the Autorité de la concurrence of the exclusive control of certain assets of (...)

The EU Commission approves joint-venture offering enhanced security services for applications such as mobile payments running on smartphones and tablets (Giesecke & Devrient / Gemalto)
Stanford University - Stanford Law School
European Commission approves joint-venture in the market of Trusted Execution Environments* On 7 November 2012, the European Commission has approved, subject to conditions, the creation of the joint-venture (“the JV”) between ARM, Giesecke & Devrient and Gemalto, under the European (...)

The French Competition Authority clears, subject to conditions, a merger in the maritime transport sector (Eurotunnel / SeaFrance / MyFerryLink)
French Competition Authority (Paris)
Press Release published on the official website of the French Competition Authority. The Autorité de la concurrence clears, subject to conditions, the acquisition of certain SeaFrance assets by the Eurotunnel group* The Autorité de la concurrence has just cleared, subject to certain (...)

The EU Court of Justice dismisses appeals against General Court judgments in merger case in the publishing industry (Lagardère / VUP)
Van Bael & Bellis (Brussels)
On 6 November 2012, the European Court of Justice dismissed two appeals by Editions Odile Jacob against judgments of the General Court in the Lagardère/VUP case. The acquisition by Lagardère of part of rival publishing company Vivendi Universal Publishing was approved by the Commission (...)

State Aid

The Finnish Supreme Administrative Court decides that the EU State aid rules are not applicable to a transaction where industrial property was sold
University of Helsinki
The municipal executive board of the municipality of Iitti had accepted a sale of industrial property choosing one of two offers made. The industrial property included a land area and an industrial building. Due to a complaint by a resident of the municipality, a Finnish administrative court (...)

The ECJ provides further guidance as to whether restructuring aid granted pre-accession represents “existing aid” in the meaning of Article 1 of Regulation 659/1999 (Kremikovtzi)
Kinstellar (Sofia)
The European Court of Justice (the "ECJ") ruled that restructuring measures implemented prior to a Member State’s accession to the European Union may not be considered to constitute "existing aid" in the meaning of Article 1(b) of Regulation 659/1999 since they were not applicable after (...)

The EU Commission decides that the sale of a state owned airlines company does not amount to state aid (LOT Polish Airlines)
College of Europe (Bruges)
Article published on Lexxion State Aid Blog Sale of State-owned Airlines* Introduction In the previous posting I examined the funding of a regional airport. In this posting I look at a case concerning an airline; more specifically, the sale of three subsidiaries of Polish airline LOT. (...)

The EU Commission decides that the public financing of non-commercially used infrastructure does not constitute an advantage and has no effect on interstate trade (Przemyśl)
College of Europe (Bruges)
Article published on Lexxion State Aid Blog. A Case of Public Funding of Infrastructure that Does not Constitute State Aid: But Many Questions Remain* Introduction After the landmark judgment in Leipzig-Halle, public authorities are justifiably careful to ensure that the infrastructure they (...)

Procedures

The Supreme Court of Appeal of South Africa recognises right to class actions in competition cases (Children’s Resource Centre Trust / Pioneer Food)
Norton Rose Fulbright (London)
,
Falcon & Hume
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Norton Rose Fullbright (Sidney)
In South Africa, the Supreme Court of Appeal has for the first time recognised in principle the availability of class actions to enforce damages claims resulting from practices prohibited under South Africa’s competition act. The judgment represents a fundamental change, because previously South (...)

The EU General Court prevents EU Commission from sharing confidential information with English court in follow-on damages action (National Grid)
Van Bael & Bellis (Brussels)
On 29 November 2012, the President of the General Court, Judge Marc Jaeger, handed down an interim order suspending the Commission’s decision to share with an English court, currently reviewing a damage claim, confidential information that the Commission had received in the course of its (...)

The Portuguese Competition Authority approves guidelines implementing the new competition law
Sérvulo & Associados
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Eduardo Paz Ferreira & Associados
Between December 2012 and February 2013, the Portuguese Competition Authority (PCA), in the use of its regulatory powers, adopted a series of guidelines and orientations that it was due to adopt under the new Competition Act (Law 19/2012, of 8 May). These guidelines regard the issues of: (1) (...)

The Japan Fair Trade Commission releases survey on corporate compliance efforts and recommends best practices
Sheppard Mullin (Washington)
On November 28, 2012, the Japan Fair Trade Commission (“JFTC”) published the findings of its 2012 survey of corporate compliance practices based on (i) responses from approximately 879 companies listed on the Tokyo Stock Exchange; (ii) interviews of six attorneys specializing in corporate or (...)

The Supreme Administrative Court of Lithuania adopts a final judgment on a failure to respond to the request for information during the investigation (UAB, Plungės duona)
Max Planck Institute for Innovation and Competition (Munchen)
On 27 November 2012 the Supreme Administrative Court of Lithuania issued a final judgment in the case in which the undertaking UAB “Plungės duona” was accused of having not responded in due course to the Competition Council’s request for information during the investigation which was carried out by (...)

The Lithuanian Supreme Administrative Court revises a fine for failure to comply with a request for information (UAB Plungės Duona)
Herbert Smith Freehills (Brussels)
On 27 November 2012, the Supreme Administrative Court of Lithuania partially upheld an appeal against a ruling by the Vilnius District Administrative Court concerning a fine imposed on the industrial bakery UAB Plungės Duona for non-compliance with request by the Competition Council ("CC") for (...)

The European Court of Justice upholds Commission decision on breach of seal during an inspection (E.ON Energie)
European Commission (Brussels)
European Courts: Court of Justice upholds Commission Decision on Breach of Seal during an Inspection * On 22 November 2012, the Court of Justice of the European Union (ECJ) ruled on an appeal against a General Court (GC) judgment that had upheld the Commission decision of 2008 fining E.ON for (...)

The EU Court of Justice entirely rejects an appeal by German energy company for failing to substantiate the unduly reversed burden of proof and the allegedly incorrect assessment of the fines imposed for breaching a seal during a EU dawn raid (E.ON)
Mircea & Partners (Bucharest)
I. Introduction Breaching of a seal constitutes a serious violation of the Commission’s investigative powers in the competition field for which fines not exceeding 1 % of the undertaking’s turnover may be imposed. On 15 April 2008, E.ON Energie brought an action for annulment against a (...)

The Polish Competition Authority submits a draft amendment to the Polish competition Act: revolution or fine-tuning?
Queen’s University Belfast
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Constitutional Court of Poland
In early 2012 the Polish Competition Authority (the President of the Office for Protection of Competition and Consumers, PCA) opened a discussion on the need of an amendment of Polish competition law and later publicly presented its ideas. In mid-2012 the PCA sent a draft proposal to numerous (...)

The Polish Council of Ministers accepts proposal for draft amendment of competition law
European Commission (Brussels)
The Polish Council of Ministers accepts proposal for draft amendment of Polish competition law* On 20 November 2012, the Council of Ministers accepted the proposal for the draft amendment of the Act of 16 February 2007 on Competition and Consumer Protection (the Act). UOKiK will start drafting (...)

The EU General Court curtails EU Commission’s powers to dawn raid companies for suspected competition law infringements (Nexans)
Philippe & Partners (Brussels)
,
Liège University - IEJE
I. The Parties Nexans SA and its wholly-owned subsidiary Nexans France SAS – are two French companies which carry out their activities in the electric cable sector. II. The Facts The EU Commission (hereinafter “the Commission”) received information via leniency applications that electric cable (...)

The European General Court halts dawn raid "fishing expeditions" (Nexans, Prysmian)
Jones Day (Brussels)
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European Commission (Brussels)
,
Jones Day (Brussels)
Following dawn raids on the premises of electric cable manufacturers, the European General Court has partially overturned two EU Commission inspection decisions, finding the scope of inspection to be overreaching in scope. This is the first time that a court has annulled (albeit partially) a (...)

The UK Office of Fair Trading calls for information about online personalised pricing practices
European Commission (Brussels)
The Office of Fair Trading calls for Information about Online Personalised Pricing Practices* On 14 November 2012, the UK Office of Fair Trading (OFT) launched a call for information to explore the extent to which businesses are monitoring online shoppers and using the data to target them with (...)

The EU General Court rules on challenges to the dawn raids carried out by the Commission in the electrical cables sector (Nexans, Prysmian)
Herbert Smith Freehills (London)
,
Herbert Smith Freehills (Brussels)
1. Introduction During the course of 2012 there have been various developments at the EU level in relation to the unannounced inspections or "dawn raids" regularly conducted by the Commission in competition law cases. The General Court has ruled on challenges to the dawn raids carried out by (...)

The EU General Court confirms that fact-finding measures conducted under article 20(4) of the Regulation No 1/2003 do not bring about a distinct change of the legal position of the applicant, thus may not be the subject of an action for annulment (Nexans)
Mircea & Partners (Bucharest)
I. Introduction The applicants in the present case seek the annulment of Commission decision of 9 January 2009 ordering them to submit to an inspection in accordance with article 20(4) of Regulation No 1/2003 as well as the way in which it was executed. In the context of an investigation the (...)

The EU General Court partially annuls a Commission’s inspection decision and declares inadmissible actions for annulment of measures adopted during the inspection (Nexans)
Baker Botts (Brussels)
In two judgments rendered on 14 November 2012, the EU General Court (the ‘General Court’) provided guidance on the Commission’s obligation to define the product and geographic scope of its inspections and partially annulled two decisions ordering an inspection (the ‘inspection decisions’) on the (...)

The EU General Court partially annuls a Commission’s inspection decision and declares inadmissible actions for annulment of measures adopted during the inspection (Prysmian)
Baker Botts (Brussels)
In two judgments rendered on 14 November 2012, the EU General Court (the ‘General Court’) provided guidance on the Commission’s obligation to define the product and geographic scope of its inspections and partially annulled two decisions ordering an inspection (the ‘inspection decisions’) on the (...)

The European Court of Justice rules that the EU Commission can bring follow-on actions for damages on behalf of the EU in cartel cases (Otis)
Jones Day (Brussels)
,
McDermott Will & Emery (Paris)
,
McDermott Will & Emery (Paris)
EU Commission Can Bring Follow-On Actions for Damages on Behalf of the European Union in Cartel Cases* On 6 November 2012, the Court of Justice of the European Union (CJEU) ruled that the European Commission was entitled to represent the European Union in an action for damages before national (...)

The Romanian Competition Council releases its annual report on competition developments in key sectors
Kinstellar (Bucarest)
,
OMV Petrom
Introduction On 1 November 2012, the Romanian Competition Council (the "RCC") launched a public debate with the publication of its fourth report on competition developments in certain key sectors of the Romanian economy. The publication of this report is part of the RCC’s efforts to monitor and (...)

The EU Court of Justice establishes new rules of procedure
Jones Day (Brussels)
,
European Commission (Brussels)
,
Jones Day (Brussels)
The European Court of Justice ("ECJ") has adopted new rules of procedure, replacing previous rules that had remained largely untouched since their adoption in 1953. The goal of these changes is to speed up ECJ proceedings, but these new rules may also reduce transparency and undercut parties’ (...)

The European Competition Network publishes a new version of its model leniency programme
Morgan Lewis (London)
,
Squire Patton Boggs (London)
,
Jones Day (London)
The European Competition Network ("ECN") has published a new version of its Model Leniency Programme ("MLP"). The MLP makes it easier for companies that have uncovered evidence of participation by their employees in a cartel to "blow the whistle" in return for immunity from, or a reduction in, (...)

Regulatory

The German Competition Authority intends to set up the future transparency unit for fuels
European Commission (Brussels)
Germany: Preparations for Launch of Transparency Unit for Fuels* The Bundeskartellamt (BKartA) has appointed on 30 November 2012 a project team in order to set up the future transparency unit for fuels. The unit is envisaged to be operational in 2013. Complaints against high fuel prices are (...)

The Spanish Supreme Court declares invalid the agreement on allocation of digital terrestrial television licenses, creating uncertainty as to the timing of the implementation of certain objectives of the "digital agenda"
European Commission - DG COMP (Brussels)
1. Background The judgment in question casts uncertainty over Spain’s implementation of certain objectives set forth in the Digital Agenda – namely, the introduction of the fourth generation of mobile telephony (Long Term Evolution, “LTE”) and ensuring ultrafast mobile broadband coverage for 98% (...)

The Chinese Ministry of Information and Industry Technology announce the adoption of a pilot program to introduce private capital into two core sectors in the telecommunications industry
University of Melbourne
,
China Competition Bulletin (Beijing)
,
Institute of American Studies
It is reported that the Ministry of Information and Industry Technology (MIIT) will adopt a pilot program to introduce private capital into two core sectors in the telecommunications industry— mobile telecommunications resale services and network access services—within the year. The pilot (...)

The England and Wales Tribunal accepts the submission sent by the Competition Commission for recovery of participation costs as regards a quasi-judicial review within an appeal under section 193(7) (British Telecommunications / Office of Communications)
Blackstone Chambers
Down the rabbit-hole: costs, the Comms Act and the Competition Commission* ‘“But I don’t want to go among mad people”, Alice remarked. “Oh, you can’t help that,” said the Cat: “we’re all mad here”.’ Where an appeal to the Tribunal under section 192 of the Communications Act 2003 gives rise to (...)

The Communications Authority of Hong Kong reviews the regulatory guidance on the charging principles of interconnection between fixed carriers
University College London
The Communications Authority of Hong Kong has recently initiated a public consultation on the Review of Regulatory Guidance on the Charging Principles of Interconnection between Fixed Carriers (the "Consultation"). The two-month consultation was conducted from 7 November 2012 to 7 January 2013. (...)

The UK Competition Appeal Tribunal maintains that Ofcom enjoys a large margin of discretion concerning the performance of its dispute resolution function and that MNOs’ compliance with the ex-ante regulation provides a valid reason not to interfere with the disputed charges (Telefonica / Office of Communications)
Blackstone Chambers
Flip Flopping: Telefonica UK v Office of Communications* What should Ofcom do when mobile network operators (“MNOs”) spot a loophole in the regulator’s price control mechanism and proceed to “game” the system over several years, increasing their revenues by many millions of pounds? This (...)

Public sector

The EU Court of Justice reaffirms its dictum on in-house providing as an exception to the applicability of the EU public procurement directives (Econord / Varese)
European Procurement Law Group
In-house providing and (minimum) "effective" public control: Sunset or breaking dawn for purely public (commercial) service providers? (C‑182 and 183/11)* In its Judgment of 29 November 2012 in Joined Cases C‑182/11 and C‑183/11, Econord SpA v Comune di Cagno and Comune di Varese (C-182/11) and (...)

The Danish Competition and Consumer Authority publishes guidelines on fighting bid rigging in public procurement
European Commission (Brussels)
Denmark: Guidelines on Fighting Bid Rigging in Public Procurement published* The Danish Competition and Consumer Authority (DCCA) has published a set of guidelines on how to fight bid rigging cartels in public procurement on 29 November 2012. The guidelines also address the issues of (...)

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