November 2016

Anticompetitive practices

The Brazilian Administrative Council For Economic Defense’s tribunal provides further guidance for the assessment of international cartels, indicating when they are considered able to produce effects in Brazil
Mattos Filho Veiga Filho Marrey Jr & Quiroga (New York)
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Mattos Filho, Veiga Filho, Marrey Jr. & Quiroga (Sao Paulo)
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Mattos Filho, Veiga Filho, Marrey Jr. & Quiroga (Sao Paulo)
CADE’s Tribunal provided, during judgment sessions held between August and November of 2016, further guidance for the assessment of international cartels, indicating when they are considered able to produce effects in Brazil, in breach of Brazilian competition law. These decisions were issued (...)

The Belgian Competition Authority carries inspections at several undertakings active in the wholesale distribution of pharmaceutical and para-pharmaceuticals products to pharmacies
Belgian Competition Authority (Brussels)
The Belgian Competition Authority confirms inspections at several companies active in the wholesale distribution of pharmaceutical and para-pharmaceuticals products to pharmacies* The Investigation and Prosecution Service of the Belgian Competition Authority (hereafter “BCA”) confirms that the (...)

Advocate General Kokott delivers her opinion on an appeal lodged before the EU Court of Justice against a judgment upholding the Commission’s decision finding an illegal price-fixing cartel (Pacific Fruit)
Van Bael & Bellis (Brussels)
Summary On 17 November 2016, Advocate General (“AG”) Kokott delivered her opinion on an appeal lodged before the European Court of Justice (“ECJ”) by Pacific Fruit (and its parent companies) against a judgment of the General Court (“GC”) upholding the European Commission’s decision finding an (...)

The Turkish Competition Board publishes its reasoned decision on the investigation conducted against upon allegations of resale price fixing on the auto gas market (Aygaz)
ELIG, Attorneys-at-Law
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ELIG, Attorneys-at-Law
This case note analyses the Turkish Competition Board’s (“Board”) Aygaz decision dated 16.11.2016 with No. 16-39/659-294. The Board assessed allegations that Aygaz and its wholly-owned subsidiary, Mogaz A.Ş. (“Mogaz”), had engaged in resale price maintenance (“RPM”). Background The Board initiated (...)

The Chinese SAIC fines three payment encryption device suppliers for market partitioning
Hogan Lovells (Beijing)
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Hogan Lovells (Beijing)
Chinese payment encryption device suppliers fined for participation in government-orchestrated cartel* On 4 November 2016, the State Administration for Industry and Commerce (“SAIC“) – one of China’s antitrust authorities – published on its website three decisions, whereby three payment encryption (...)

The EU Commission sends a statement of objections against two airlines concerning a potentially anticompetitive codeshare agreement (Brussels Airlines / TAP Portugal)
European Commission - DG COMP (Brussels)
Antitrust: Commission sends Statement of Objections to Brussels Airlines and TAP Portugal on code-sharing on Brussels-Lisbon route* The European Commission has informed Brussels Airlines and TAP Portugal of its preliminary view that their codeshare cooperation on passenger services between (...)

The EU Commission opens a formal investigation concerning a network sharing agreement between two mobile phone companies (O2 CZ / CETIN / T-Mobile)
European Commission - DG COMP (Brussels)
Antitrust: Commission opens formal investigation into mobile telephone network sharing in Czech Republic* The European Commission has opened an investigation into a network sharing agreement between two Czech operators of mobile telephony, O2 CZ / CETIN and T-Mobile CZ. The Commission will (...)

The Italian Lazio Administrative Court upholds almost all the findings of the Competition Authority of a collusion in public contracts procurement (School Cleaning Services)
Desogus Law Office (Cagliari)
The Regional Administrative Court for Latium (the Court) has recently handed down four judgments on the appeals filed against the infringement decision made by the Italian Competition Authority (ICA) in the School Cleaning Services case . By this decision the ICA found that Consorzio Nazionale (...)

The EU General Court rules on the legitimacy of settlement agreements in the pharmaceutical sector (Lundbeck)
Peters & Peters
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Peters & Peters
Lundbeck - Buying off the competition* On 8 September 2016, the ECJ handed down its judgment in the latest battle between pharmaceutical companies and competition authorities over “pay for delay” agreements. The appeal of H Lundbeck A/S and Lundbeck Ltd (together “Lundbeck”) against the decision (...)

The Polish Competition Authority fines a professional association for anticompetitive conduct aimed at the governmental treatment of infertility programme (Association of Medical Centers)
Hansberry Tomkiel
I. Introductory remarks In its decision no RŁO 4/2016 of 1st September 2016 (the “Decision”), the Polish Office for Competition and Consumer Protection (the “Competition Authority”) sanctioned the Association of Polish Centers of Infertility Treatment and Reproduction Development (the (...)

Unilateral Practices

The Romanian High Court of Cassation and Justice confirms the right to compensation of a company that suffered damages following the imposition of discriminatory conditions by the incumbent postal service provider in relationship with its customers (Mailers Serv / Compania Nationala Posta Romana)
Romanian Competition Council (Bucharest)
On 28.7.2011, Mailers Serv S.R.L. (in insolvency) brought an action for damages before the Tribunalul Bucuresti, Sectia Civila against CNPR claiming the difference of the discounts that would have received as a customer of CNPR if the latter would have applied the same conditions as to the (...)

The Belgian Competition Authority rejects a request to suspend an acquisition that was not subject to prior notification in the brewery sector (Alken-Maes / Boatels / AB InBev)
Van Bael & Bellis (Brussels)
On 21 November 2016, the Competition College of the Belgian Competition Authority (“BCA”) rejected a request of Brouwerijen Alken-Maes (“Alken-Maes”) to suspend the acquisition of Brouwerij Bosteels (“Bosteels”) by Anheuser-Busch InBev NV (“AB InBev”). AB InBev’s takeover of Bosteels was not subject (...)

The French Competition Authority issues its opinion on the access to information on the prices of lands for development
French Competition Authority (Paris)
Land available for development* The Autorité de la concurrence recommends providing professionals and private individuals with improved access to information on the prices of lands for development. It welcomes the recent measures taken to improve cost transparency within the sector and (...)

The EU Commission launches an investigation against a Czech railway incumbent suspected to abuse of dominance (České dráhy)
European Commission - DG COMP (Brussels)
Antitrust: Commission investigates practices of Czech railway incumbent České dráhy in passenger transport* The European Commission has opened an investigation to assess whether the Czech railway incumbent České dráhy, a.s. (ČD) charged prices below costs with the aim of shutting out competition in (...)

The Belgian Competition Authority closes its investigation regarding a real estate website due to remedies offered by the undertaking (Immoweb)
Belgian Competition Authority (Brussels)
The Investigation and Prosecution Service of the Belgian Competition Authority has closed its investigation against Immoweb due to commitments offered by Immoweb* On January 30 2015, the Investigation and Prosecution Service opened an ex officio investigation against Immoweb, the company (...)

The Russian Competition Authority fines a supplier of water for abuse of dominance (Sevkavkazenegro)
Russian Federal Antimonopoly Service
Five fines upon a monopolist* On 26 October, the Office of the Federal Antimonopoly Service in the Republic of North Ossetia – Alania imposed five fines upon “Sevkavkazenegro” JSC, totalling 2,812,500 RUB. The penalty is imposed for abusing dominance. In April 2015, “Sevkavkazenegro” JSC (...)

Advocate General Wahl recommends that the EU Court of Justice grant an appeal against the judgement of the General Court, which had upheld a decision of the European Commission imposing a fine of € 1.06 billion for abuse of a dominant position (Intel)
Van Bael & Bellis (Brussels)
On 20 October 2016, Advocate General Wahl rendered his opinion on Intel’s appeal before the Court of Justice of the European Union (“CJEU”) against the judgement of the General Court, which had upheld a decision of the European Commission of 13 May 2009 imposing a fine of € 1.06 billion for abuse (...)

EU Court of Justice Advocate General Wahl delivers his opinion in a case regarding rebates and calls for a new approach to Article 102 (Intel)
Baker McKenzie (Brussels)
Call for a common-sense approach to Article 102 - Advocate General Wahl on Intel* If AG Kokott in Post Danmark II was a 102 hawk – ordoliberal-redux, fossilizing form over function, economics on the “too difficult pile” for authorities and courts – then AG Wahl firmly sets out his stall as the 102 (...)

The French Supreme Court confirms fines imposed on undertaking for abusive limitation of generic entry (Sanofi-Aventis)
Van Bael & Bellis (Brussels)
On 18 October 2016, the French Supreme Court upheld the decision of the French Competition Authority (“FCA”) which had fined the pharmaceutical company Sanofi-Aventis over € 40 million for having abused its dominant position on the market for the active ingredient clopidogrel. Sanofi-Aventis was (...)

The Latvian Competition Authority fines two plasterboard suppliers for abuse of dominance (Knauf / Norgips)
Competition Council of Latvia
The CC fines with EUR 1.6 million two Plasterboard Suppliers of Knauf Group* On 30 September, the Competition Council of Latvia (the CC) fined SIA Knauf and Norgips sp. z o. o. (Poland), a parent company of SIA Norgips that is also a part of a Knauf Group, for abusing their market power by (...)

Mergers

The Belgian Competition Authority clears a merger subject to remedies in the sector of newspapers distribution and delivery of small parcels (AMP / LS Distribution Benelux / bpost)
Belgian Competition Authority (Brussels)
The Competition College of the BCA has approved conditionally the acquisition of AMP and LS Distribution Benelux by bpost* The Competition College of the Belgian Competition Authority has on 8 November 2016 conditionally approved the acquisition of AMP NV and LS Distribution Benelux NV by (...)

The EU Commission clears a merger subject to remedies on the animal health market (Sanofi / Boehringer)
European Commission - DG COMP (Brussels)
Mergers: Commission approves acquisition of Sanofi’s animal health business Merial by Boehringer Ingelheim, subject to conditions* The European Commission has approved under the EU Merger Regulation the acquisition of the animal health business of Sanofi (Merial) of France by Boehringer (...)

The French Competition Authority fines a group and its recently-acquired subsidiaries 80 M € for having coordinated their business strategies and commercial behaviour prior to merger control clearance (Altice)
Hogan Lovells (Paris)
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Hogan Lovells (Paris)
This article was first published in Concurrences Review N° 2-2017, Art. N° 83875, pp. 231-239 I. Introduction In November 2016, the French Competition Authority (“FCA”) fined French-based Altice/Numericable group and its recently-acquired telecom subsidiaries SFR and Virgin Mobile France for (...)

The French Competition Authority fines companies for gun-jumping (Altice)
Van Bael & Bellis (Brussels)
On 8 November 2016, the French Competition Authority (FCA) fined Altice (trading as Numericable) and SFR Group € 80 million for the coordination of commercial behaviour prior to obtaining French merger control clearance. The FCA decision is ground-breaking as it imposes the highest fine ever in (...)

The French Competition Authority fines a multinational telecoms company for the premature completion of two mergers (Altice)
French Competition Authority (Paris)
The Autorité de la concurrence fines the Altice group 80 million euros for the premature completion of two mergers notified in 2014* The Autorité de la concurrence issued a decision today to fine jointly Altice Luxembourg and SFR Group 80 million euros, in application of Section II of Article (...)

The French Competition Authority fines a major French telecommunications operator for gun-jumping (Altice)
Jones Day (Brussels)
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Jones Day (Paris)
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Jones Day (Paris)
This week, the French Competition Authority ("FCA") imposed a EUR 80 million fine on the Altice Group, a major French telecommunications operator, for implementing two transactions before approval by the FCA (so-called "gun jumping"). The full text is not yet available, but this decision (...)

The German Competition Authority clears a merger, subject to remedies, in the food retail market (Coop / Rewe)
German Competition Authority (Bonn)
Bundeskartellamt clears acquisition of Coop by Rewe subject to conditions* The Bundeskartellamt has cleared the acquisition of the northern German food retailer Coop eG, Kiel, by REWE Markt GmbH, Cologne, subject to conditions. Coop operates around 200 supermarkets in the federal states of (...)

The EU Commission clears a merger, subject to remedies, in the alumina sector (Alteo ARC and Alufin / Imerys)
European Commission - DG COMP (Brussels)
Mergers: Commission approves acquisition of Alteo ARC and Alufin by Imerys, subject to conditions* The European Commission has cleared under the EU Merger Regulation the proposed acquisition of Alteo ARC and Alufin by Imerys of France. The clearance is conditional on the divestment of Alteo (...)

The EU Commission clears a merger, subject to remedies, in the laser manufacturing sector (Rofin-Sinar / Coherent)
European Commission - DG COMP (Brussels)
Mergers: Commission approves acquisition of lasers supplier Rofin-Sinar by Coherent, subject to conditions* The European Commission has cleared under the EU Merger Regulation the proposed acquisition of US and German-based Rofin-Sinar by Coherent of the US. Both are global suppliers of lasers. (...)

The UK Competition Authority orders structural remedies to clear a merger on the market of energy trading services (Intercontinental Exchange / Trayport)
Van Bael & Bellis (Brussels)
On 17 October 2016, the UK Competition and Markets Authority (“CMA”) ordered Intercontinental Exchange Inc. (“ICE”) to sell Trayport to a new owner, to be approved by the CMA, in order to preserve competition on the market for the supply of certain energy trading services. ICE is the largest (...)

The EU Commission seeks feedback on procedural aspects of EU merger control
Van Bael & Bellis (Brussels)
On 7 October 2016, the Commission published an online survey to collect views on certain procedural and jurisdictional aspects of EU merger control. According to the Commission, the purpose of the survey is to gather information on particular aspects of the performance of EU merger control. The (...)

The Stockholm District Court rules that non-compete clauses exceeding 2 years are not necessarily anti-competitive by object (Alfa Quality Moving / NFB Transport Systems / ICM Kungsholms)
Vinge (Stockholm)
Missing a moving target: Stockholm District Court rules on non-compete clauses*The Stockholm District Court has found against the Swedish Competition Authority (SCA) that a non-compete clause lasting five years did not constitute an infringement of competition rules by object, and has further (...)

State Aid

The EU Court of Justice rules in two State aid cases regarding the pension scheme of the French incumbent telecom company (Orange)
College of Europe (Bruges)
Pensions, public statements and private investors* Introduction This article reviews two court judgments both of which concern Orange, the French incumbent telecoms operator. The first judgment finds that compensation for the extra costs of pensions of Orange employees with civil service (...)

Procedures

The EU Commission publishes study on the passing-on of overcharges
Van Bael & Bellis (Brussels)
On 25 October 2016, the European Commission’s Directorate-General for Competition (“DG Comp”) published an expert study on potential approaches for national courts to assess the passing-on of overcharges in competition litigation (“the Study”). The Study aims to provide judges and practitioners (...)

The EU Commission plans new antitrust law under 2017 work programme
Van Bael & Bellis (Brussels)
On 25 October 2016, the European Commission published its annual Work Programme: Delivering a Europe that protects, empowers and defends. As part of the Commission’s plans for creating a deeper and fairer internal market with a strengthened industrial base, antitrust enforcers are expected to (...)

Public sector

The US FTC and the DOJ publish for public comment proposed Antitrust Guidelines for International Enforcement and Cooperation
Jones Day (Cleveland)
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Jones Day (Washington)
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Jones Day (Washington)
The Federal Trade Commission and the Department of Justice have published for public comment proposed Antitrust Guidelines for International Enforcement and Cooperation ("2016 Proposed Guidelines"). This would be the third iteration of international enforcement guidelines, following the (...)

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