November 2015

Anticompetitive practices

The EU Commission publishes frequently asked questions about the new Guidelines on joint selling of olive oil, beef and veal and arable crops
European Commission - DG COMP (Brussels)
Antitrust: new Commission Guidelines on joint selling of olive oil, beef and veal, and arable crops - frequently asked questions* Antitrust: new Commission Guidelines on joint selling of olive oil, beef and veal, and arable crops - frequently asked questions 1. What is the purpose of the new (...)

The EU Court of Justice provides guidance on the notion of restriction by object in the context of commercial lease contracts (Maxima Latvija)
Simmons & Simmons (London)
Traditionally, land agreements do not attract much scrutiny under competition law, although certain restrictive covenants and rights may raise issues. When issues do arise, they tend to be considered at national level rather than European Union level, as the effect on trade is rarely (...)

The EU Court of Justice rules on limited exclusivity restriction in lease agreements and concludes that it is not a restriction by object (Maxima Latvija)
Liège University - IEJE
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Liège University - IEJE
In a preliminary reference judgment in the Maxima Latvija case, the Court of Justice of the EU (CJEU) has ruled that commercial lease agreements including a clause conferring on the anchor tenant the right to approve lease agreements that the property owner may conclude with third parties do (...)

The EU Court of Justice finds limited exclusivity restriction in lease agreements not to be a restriction by object (Maxima Latvija)
Van Bael & Bellis
On 26 November 2015, the European Court of Justice (“ECJ”) handed down its judgment in a request for a preliminary ruling in the proceedings between Maxima Latvija, a Latvian entity carrying out business predominantly in the food retail trade, and the Latvian Competition Council. By way of (...)

The Hungarian Competition Authority reduces the fine imposed in the pipe cartel case (Pipelife)
Hungarian Competition Authority (Budapest)
Fine reduction via leniency policy* The Gazdasági Versenyhivatal (GVH – Hungarian Competition Authority) established that BTH Fitting Gyártó és Forgalmazó Kft. (BTH), Pipelife Hungária Műanyagipari Kft. (Pipelife), Wavin Hungary Ipari, Kereskedelmi and Szolgáltató Kft. (Wavin) concluded market sharing (...)

The US Court of Appeals for the Fifth Circuit upholds verdict against steel manufacturer in steel distributors’ per se illegal group boycott (MM Steel / JSW Steel)
Jones Day (Houston)
The Fifth Circuit Court of Appeals upheld a $156 million jury verdict against a U.S. Gulf Coast steel manufacturer accused of conspiring with distributors to "boycott" a new distributor by denying it access to steel. Even though the steel manufacturer was responding to pressure from (...)

The Turkish Competition Board grants individual exemption to an agreement signed on broadcasting rights (Turkish Basketball Federation/ Digiturk)
Erdem & Erdem
The Competition Board (“Board”) has granted individual exemption to the Media Rights Agreement (“Agreement”) signed by and between Turkish Basketball Federation (“TBF”) and Krea İçerik Hizmetleri ve Prodüksiyon A.Ş. (“Digiturk”) in accordance with Art. 5 of Act on the Protection of Competition No. 4054 (...)

The Competition Commission of India fines airlines for a cartel regarding fuel surcharge (Jet Airways / InterGlobe Aviation / Spice Jet)
Lakshmikumaran & Sridharan (New Delhi)
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Lakshmikumaran & Sridharan (New Delhi)
Introduction Continuing with its mandate of preventing any practice which has an appreciable adverse effect on competition (AAEC) in India including crackdowns on cartel, the Competition Commission of India (CCI) has, recently, found a case of cartelization in the airline industry segment in (...)

The Indian Competition Commission fines airlines for fixing fuel surcharge and shows a change in the evidentiary standard in cartel cases involving price parallelism and circumstantial evidence (Jet Airways / InterGlobe Aviation / Spice Jet)
Vinod Dhall and Talwar Thakore & Associates
CCI imposes penalty of USD 38.6 million on airlines for fixing fuel surcharge* Just when one almost thought that the year 2015 would go by without a major cartel fine, the Competition Commission of India (CCI) published a decision on 17 November 2015 imposing penalties of USD 38.6 million (...)

The Pakistani Competition Authority publishes a show cause notice to a professional association suspected prima facie of fixing prices of poultry products (PPA)
Competition Commission of Pakistan
CCP issues showcause notice to pakistan poultry association over prima facie fixing prices of poultry products* The Competition Commission of Pakistan (CCP) has issued a show cause notice to the Pakistan Poultry Association (PPA) for prima facie violation of Section 4 of the Competition Act, (...)

The Regional Administrative Court of Lazio confirms that bid-rigging is a competition restriction by object (Eco Trass)
Desogus Law Office (Cagliari)
Introduction By a judgment handed down on 16 November 2015 in the case Eco Trass et al v AGCM (Eco Trass) the Regional Administrative Court of Latium (the Court) rejected the appeal against the infringement decision made by the Italian Competition Authority (ICA) in the case I765, Gare (...)

The German Competition Authority opens proceedings in the audiobooks market (Audible / Amazon / Apple)
German Competition Authority (Bonn)
Bundeskartellamt opens proceedings against Audible/Amazon and Apple* The Bundeskartellamt has initiated administrative proceedings against the Amazon subsidiary Audible.com and Apple Computer Inc. The companies have a long-term agreement on the purchase of audiobooks by Apple from Audible for (...)

The Bulgarian Commission on Protection of Competition and the UNCTAD organize a forum to assist competition authorities in the Balkan region in enforcing their competition regimes
Johnson & Johnson (Sofia)
The 7th meeting of Sofia Competition Forum was held on November 12, 2015 in Sofia, Bulgaria. It has been its third consecutive year since SCF was created in 2012 as a joint initiative of UNCTAD and the Bulgarian Commission on Protection of Competition. The aim of the Forum is to assist (...)

The Canadian Competition Bureau releases the Competition and Compliance Framework information bulletin following public comment
Canadian International Joint Commission
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Université de Montréal
Introduction Following a request for public comment in May 2015, the Competition Bureau, which assists the Commissioner of Competition (“Commissioner”) in the administration and enforcement of the Competition Act (“Act”), published the final version of its Competition and Compliance Framework (...)

The Czech Competition Authority fines tenderers for cartel and bid rigging in the construction sector
Czech Competition Authority
Bid rigging construction cartel fined CZK 2.036 Billion* On the 6th November 2015, the Office for the Protection of Competition adopted the first instance decision regarding bid-rigging cartel agreement in the construction sector. The fines imposed on the cartel members amount to CZK 2.036 (...)

The Belgian Competition Authority imposes provisional measures in a case involving TV rights for a series of cyclocross competitions (Telenet)
Belgian Competition Authority (Brussels)
The Competition College of the Belgian Competition Authority has imposed on the 5th of November 2015 provisional measures with regard to TV rights for the Superprestige cyclocross competition* The v.z.w. Verenigde Veldritorganisatoren (the organizer) and Telenet concluded an agreement granting (...)

The Mexican Competition Authority launches an investigation on the market of securities transportation services
Mexican Competition Authority (Mexico city)
COFECE investigates securities transportation services* Mexico City November 5th 2015.- Through the Mexican Official Gazette and its website, the Federal Economic Competition Commission’s (COFECE) Investigative Authority publicly announces the opening of an investigation derived from a (...)

The UK Court of Appeal allows appeal from UK Patents Court decision on competition law arguments in a FRAND dispute in relation to standard essential patents (Unwired Planet / Huawei / Samsung / Ericsson)
Gowling Lafleur Henderson
Unwired Planet v Huawei & Samsung: Samsung Given Permission To Appeal Strike Out*Summary Unwired Planet asserts that Samsung and Huawei have infringed several ’standard essential patents’ (SEPs) relevant to mobile telecommunications standards. Samsung and Huawei have defended the claims based (...)

The EU Commission sends a statement of objections to several companies suspected of participation in an electrolytic capacitors cartel
European Commission - DG COMP (Brussels)
Antitrust: Commission sends statement of objections to suspected participants in electrolytic capacitors cartel* The European Commission has informed ten manufacturers of electrolytic capacitors that it suspects them of having participated in a cartel, in breach of EU antitrust rules. (...)

Unilateral Practices

The French Competition Authority fines a telecommunications company for implementing abusive practices on the “business” market (SFR)
French Competition Authority (Paris)
The Autorité de la concurrence fines SFR and its subsidiary in La Réunion 10.7 million euros for implementing abusive practices on the “business” market.* In brief The Autorité de la concurrence issues today a decision in which it fines SFR and SRR, SFR’s subsidiary in La Réunion, a total of 10.7 (...)

The Chinese Gansu Development and Reform Commission fines several undertakings in the car maintenance industry to address price fixing and administrative monopoly conduct (Wuwei)
China Competition Bulletin (Beijing)
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China Competition Bulletin (Beijing)
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Hogan Lovells (Beijing)
The Gansu Development and Reform Commission (Gansu DRC) recently undertook enforcement action in the car maintenance industry in Wuwei. One case involved pricing fixing, and the other was an administrative monopoly case. Price fixing The Gansu DRC fined 22 car maintenance businesses in Wuwei (...)

The Düsseldorf Higher Regional Court finds that “wedding-rebates” requested by a food retailer from its suppliers are not abusive (EDEKA)
Commeo
In its judgement of 18 November 2015, the Düsseldorf Higher Regional Court (“the Court”) quashed a decision of the Federal Cartel Office (“FCO”) which stated that German food retailer EDEKA abused its dominant position by requesting preferential purchase conditions and bonus payments from sparkling (...)

The Belgian Competition Authority imposes provisional measures in a case involving TV rights for a series of cyclocross competitions (Telenet)
Van Bael & Bellis (Brussels)
On 5 November 2015, the Competition College of the Belgian Competition Authority (“BCA”) imposed provisional measures with regard to TV rights for the Superprestige Cyclocross Competition to address a possible infringement of Article IV.1 and/or IV.2 of the Code of Economic Law (the Belgian (...)

The Düsseldorf District Court rules on the requirements of an antitrust defence against an SEP holder in light of the ECJ’s judgment in Huawei / ZTE (SISVEL / Haier)
Simmons & Simmons (Dusseldorf)
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Simmons & Simmons (Dusseldorf)
A strict approach to applying the principles established in Huawei/ZTE, in particular as regards the prompt provision of security and a statement of account of past use, resulted in the defendant losing the right to raise a fair, reasonable and non-discriminatory (FRAND) defence. In detail (...)

The Düsseldorf Regional Court orders injunctive relief for infringement of standard-essential patents in the first German judgments after CJEU decision on FRAND (SISVEL / Haier)
Arnold Ruess
On 3 November 2015, the Düsseldorf Regional Court has issued judgments against Haier Deutschland GmbH und die Haier Europe Trading SRL, entities of Chinese Qingdao Haier Group. The Court ordered them to cease and desist from and render account on past infringements as well as determined Haier’s (...)

Mergers

The Belgian Competition Authority decides to initiate an additional investigation concerning the acquisition of multiplex cinemas (Utopolis / Kinepolis)
Belgian Competition Authority (Brussels)
The Belgian Competition Authority has decided to initiate an additional investigation in the case Mede-I/O-15/0030 regarding the acquisition by Kinepolis of the four multiplex cinemas Utopolis of the group Utopia in Flanders* On 12 October 2015, Kinepolis formally seized the Belgian (...)

The Chinese MOFCOM approves a merger in the semiconductor industry subjecting it to a fix-it first remedy (NXP / Freescale)
China Competition Bulletin (Beijing)
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China Competition Bulletin (Beijing)
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Hogan Lovells (Beijing)
NXP’s acquisition of Freescale was conditionally approved by the MOFCOM on 27 November 2015. Both companies are major players in the semiconductor industry. The notification was first accepted in May 2015 and review had entered extended phase 2, but the notification was withdrawn and then (...)

The German Competition Authority clears a merger in the waste management market (Remondis / Cortek Group)
German Competition Authority (Bonn)
Remondis can acquire Cortek Group* In second phase proceedings the Bundeskartellamt has cleared the acquisition of the Cortek group by REMONDIS GmbH & Co. KG, Kloster Lehnin. The Cortek group includes the following companies: Cortek Gesellschaft für Recycling und Entsorgungsleistungen mbH, (...)

The EU Commission clears a merger between two semiconductors manufacturers (Avago / Broadcom)
European Commission - DG COMP (Brussels)
Mergers: Commission clears Avago’s acquisition of Broadcom* The European Commission has approved under the EU Merger Regulation the acquisition of Broadcom Corporation by Avago Technologies Limited. Both companies are global manufacturers of semiconductors. The Commission concluded that the (...)

The EU Commission approves the acquisition of a data centre operator by rival subject to the divestment of a number of data centres in Amsterdam, London and Frankfurt (Telecity / Equinix)
European Commission - DG COMP (Brussels)
Mergers: Commission clears acquisition of Telecity by Equinix, subject to conditions* The European Commission has approved the proposed acquisition of data centre operator Telecity by rival Equinix subject to the divestment of a number of data centres in Amsterdam, London and Frankfurt. The (...)

The Italian Competition Authority clears a merger between media operators by imposing a divestiture remedy (Libero Acquisition / Seat Pagine Gialle)
Desogus Law Office (Cagliari)
By a decision made on 11 November 2015 the Italian Competition Authority (ICA) has closed a II-phase investigation into the proposed acquisition of Seat Pagine Gialle (Seat) by Libero Acquisition (Libero) in the Libero Acquisition/Seat Pagine Gialle case . The merging parties were media (...)

The EU Commission approves the creation of a joint venture between two of the world’s leading coffee manufacturers, subject to conditions (DEMB / Mondelēz)
European Commission - DG COMP (Brussels)
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European Commission - DG COMP (Brussels)
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European Commission - DG COMP (Brussels)
"Some like it hot! – coffee merger between DEMB and Mondelēz"* In a nutshell Coffee products belong to a differentiated market where the evaluation of closeness of competition is key to the competitive assessment. Internal documents, views of market participants and economic analysis (...)

The Mexican Competition Authority fines two undertakings for failing to notify their merger (Alsea / Axo)
Mexican Competition Authority (Mexico city)
COFECE sanctions Alsea and Grupo Axo for failing to notify a concentration* Mexico City, November 2nd 2015. - The Mexican Federal Competition Commission (COFECE) imposed sanctions for 1.5 million dollars to Alsea S.A.B de C.V (Alsea) and for one hundred and seventy four thousand dollars4 to (...)

State Aid

The EU Court of Justice rules on the application of State aid rules in national court proeedings and the principle of res judicata (Klausner Holz Niedersachsen GmbH / Land Nordrhein Westfalen)
Van Bael & Bellis (Brussels)
On 12 November 2015, the Court of Justice of the European Union (“ECJ”) handed down a judgment on a reference for a preliminary ruling from the Münster Regional Court in case C-505/14, Klausner Holz Niedersachsen GmbH v Land Nordrhein Westfalen. The case concerns the application of the EU state (...)

The EU Court of Justice rules on the application of State aid rules in national court proceedings and the principle of res judicata (Klausner Holz Niedersachsen GmbH / Land Nordrhein Westfalen)
Van Bael & Bellis (Brussels)
On 12 November 2015, the Court of Justice of the European Union (“ECJ”) handed down a judgment on a reference for a preliminary ruling from the Münster Regional Court in case C-505/14, Klausner Holz Niedersachsen GmbH v Land Nordrhein Westfalen. The case concerns the application of the EU state (...)

Procedures

The UK High Court decides that a standalone claim issued in the High Court could be transferred to the Competition Appeal Tribunal (Sainsbury Supermarkets / MasterCard)
Blackstone Chambers
Standalone claims in the CAT: bypassing the transitional rules* We have written before about the problems inherent in the transitional provisions of the new Consumer Rights Act 2015 (see Tom de la Mare QC’s blog here). A recent decision from Mr Justice Barling in the Mastercard litigation (...)

The Ontario Superior Court of Justice refuses to approve an agreement between two companies on credit card interchange fees (Bancroft-Snell / Visa Canada Corporation)
Affleck Greene McMurtry
Courts have begun to criticize plaintiff lawyers who file multiple overlapping class actions across the country. In Ontario, Perell J. refused to approve an agreement by two BC firms to share their fee with a Saskatchewan-based firm, Merchant Law Group (“MLG”) in Bancroft-Snell v. Visa Canada (...)

The Albanian Competition Commission approves a New Leniency Program
Albanian Competition Authority
The Commission of the Competition Authority during its meeting, date 17.11.2015 approved “The Leniency Program and Application Form for leniency”. This program is supported by Law no. 9121, Article 77, and date 28.07.2003 on “Competition Protection” (as amended). The program enables the Authority (...)

The US Court of Appeals for the Third Circuit potentially widens the opening for additional classes of plaintiffs to assert claims for antitrust injury (Hanover 3201 Realty / Village Supermarkets)
Patterson Belknap Webb & Tyler
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Patterson Belknap Webb & Tyler
Third Circuit Provides Clarity to “Inextricably Intertwined” Basis of Antitrust Injury in Partially Reinstating Claims Against ShopRite* On November 12, 2015, the Third Circuit Court of Appeals issued an opinion partially reversing the dismissal of the plaintiff’s claims in Hanover 3201 Realty, (...)

The European Commission publishes a far-reaching on proposals to boost the enforcement powers of national competition authorities) and to address differences between national competition enforcement systems in the European Union
Norton Rose Fulbright (Brussels)
On November 4, the European Commission published a far-reaching consultation (the Consultation) on proposals to boost the enforcement powers of national competition authorities (NCAs) and to address differences between national competition enforcement systems in the European Union. The (...)

The EU Commission launches a consultation on boosting enforcement powers of national competition authorities
European Commission - DG COMP (Brussels)
Antitrust: Commission sends statement of objections to suspected participants in electrolytic capacitors cartel* The European Commission is inviting comments on whether national competition authorities in EU Member States should be given additional tools to enforce EU antitrust rules. The (...)

Public sector

The EU Court of Justice rules on the possibility for a contracting authority to impose minimum wage special conditions on businesses tendering for public contracts (Regiopost)
Norton Rose Fulbright (London)
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Norton Rose Fulbright (London)
Introduction When can a contracting authority impose minimum wage special conditions on businesses tendering for public contracts? On 17 November 2015, the Court of Justice of the EU (CJEU) delivered its judgment in Regiopost v Stadt Landau (Regiopost), a landmark ruling which could have (...)

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