November 2017

Anticompetitive practices

The French Competition Authority rejects a complaint filed by a museum accusing competitors of cartel (Musée de Montmartre)
French Competition Authority (Paris)
The Autorité de la concurrence rejects the referral filed by the Musée de Montmartre against the InterMusées association.* The association Inter-Musées is a collective of several museums in the Ile-de-France region. It markets the « Paris Museum Pass » which gives access to these museums upon (...)

The Russian Competition Authority sanctions a cartel on the school food products market
Russian Federal Antimonopoly Service (Moscow)
FAS continues its efforts to decartelize food products supplies* he Commission of Udmurtia OFAS found bid-rigging collusion in supplies of food products to schools, pres-school day-care centres and other state and municipal institutions for the total amount over 50 million RUB Four individual (...)

The Indian Competition Authority widens the scope of bid rigging and exonerates 9 suppliers of AC (air conditioning) packages from allegations of bid rigging despite instances of identical bids (Kapurthala Rail Coach Factory / AC package suppliers)
Vaish Associates, Advocates (New Delhi)
CCI exonerates 9 supplier from bid rigging in railway tenders * The Competition Commission of India (‘CCI’) vide its order dated November 28, 2017 has exonerated nine RDSO [Research Designs & Standards Organisation] approved suppliers (“Opposite Parties”), including four sister companies, of (...)

The EU Court of Justice deals a blow to the Commission’s power to close antitrust investigations with commitment decisions (Gasorba / Repsol)
Skadden, Arps, Slate, Meagher & Flom (Brussels)
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Skadden, Arps, Slate, Meagher & Flom (Brussels)
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Skadden, Arps, Slate, Meagher & Flom (Brussels)
On November 23, 2017, the Court of Justice of the European Union (Court of Justice) dealt a blow to the European Commission’s (Commission) power to close antitrust investigations with commitment decisions, with its ruling in Case C-547/16 Gasorba et al. v. Repsol. The Court of Justice ruled that (...)

The EU Commission fines several car safety equipment suppliers in a cartel settlement case (Tokai Rika, Takata, Autoliv, Toyoda Gosei and Marutaka)
Van Bael & Bellis (Brussels)
On 22 November 2017, the European Commission announced that it had imposed nes totalling € 34 million on five car safety equipment suppliers for taking part in one or more of four separate cartels for the supply of car safety equipment to some Japanese car manufacturers in the EEA. The (...)

The French Competition Authority launches a vast sector-specific inquiry on the functioning of competition in the medicinal products and medical biology sectors
French Competition Authority (Paris)
As part of its advisory powers, the Autorité de la concurrence is launching a vast sector-specific inquiry on the functioning of competition in the medicinal products and medical biology sectors.* In particular it will look at the distribution of pharmaceuticals, their price regulation (...)

The French Competition Authority expresses interest in the discounts granted by generics firms to pharmacies (Pharmaceutical sector inquiry)
NERA (Paris)
During the launch of its pharmaceutical sector inquiry in November 2017, the French Competition Authority (FCA) expressed interest in the discounts granted by generics firms to pharmacies. The FCA quoted the decision issued following the previous sector inquiry carried out in 2013, which "had (...)

The EU Court of Justice issues a ruling assimilating farmer cooperatives to undertakings under EU competition law (APVE)
Antwerp University (UFSIA)
The ECJ Preliminary Ruling in French Endives: Two (Too?) Simple Rules to Attune Article 101 TFEU to the Common Agricultural Policy* The competition and agricultural rules in the EU treaties have lived separate lives for many decades. While an agricultural exemption from the competition rules (...)

The EU Court of Justice provides guidance to French court on relationship between EU Common Agricultural Policy and competition law (APVE)
Van Bael & Bellis (Brussels)
On 14 November 2017, the Court of Justice of the European Union (“ECJ”) handed down a judgment on a request for preliminary ruling from the French Supreme Court regarding the relationship between the objectives of the EU’s Common Agricultural Policy and those of EU competition law (C-671/15, APVE (...)

The EU General Court finds flaws in a Commission’s decision and quashes the €14.9m fine, but sustains underlying liability for “facilitation” of a cartel (Icap)
Simmons & Simmons (London)
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Simmons & Simmons (London)
The General Court’s November 2017 judgment is not such welcome news to ICAP as it might first appear. ICAP’s appeal against a 2015 infringement decision was successful insofar as the fines imposed on it will now be trimmed, but in the main the General Court supported the European Commission’s (...)

The EU General Court partially annuls a Commission decision (Yen interest rate derivatives cartel case)
Van Bael & Bellis (Brussels)
On 10 November 2017, the General Court (“GC”) partially upheld the appeal lodged by Icap plc, Icap Management Services Ltd and Icap New Zealand Ltd (“Icap”) against a Commission decision ning Icap € 14.9 million for facilitating cartels in the market for interest rate derivatives in Japanese yen (...)

The Turkish Competition Board revokes an individual exemption granted to a major player in the beer market over exclusive distribution agreements (Tuborg)
Erdem & Erdem (Istanbul)
The Turkish Competition Board’s (“Board”) decision dated 09.11.2017 and numbered 17-36/583-256 (“Decision on Revocation of the CPS Exemption”) reveals the changing structure of the Turkish beer market. With this decision, the Board revoked its individual exemption granted for the exclusive (...)

The Paris Court of Appeal grants legal privilege protection to in-house emails referring to the company’s defence strategy prepared by outside legal counsels (Whirlpool)
DLA Piper (Paris)
In its ruling issued on 8 November 2017, the Paris Court of Appeal (hereafter “the Court”) considers that in-house emails referring to a company’s defence strategy prepared by outside legal counsels but neither sent by or to an outside legal counsel were covered by lawyer-client privilege and (...)

The Russian Competition Authority opens a proceeding against a cartel that used auction robots (Egmed)
Russian Federal Antimonopoly Service (Moscow)
Case against a cartel that used auction robots* FAS opened a case upon signs of “digital” collusion at medical auctions FAS suspects that bidders at procurement for supplies of expendables for coronary angiography and stenting, “VALERIA” Ltd. and “Egmed” Ltd. used special software, tuned to (...)

Unilateral Practices

The EU Commission sends a statement of objections to a brewing company suspected to have abused of its dominance (AB InBev)
DG COMP (Brussels)
Antitrust: Commission sends Statement of Objections to AB InBev for preventing cheaper imports of beer into Belgium* The European Commission has informed AB InBev of its preliminary view that the company has abused its dominant position on the Belgian beer market, by hindering cheaper imports (...)

The EU Commission publishes a communication on Standard Essential Patents
Van Bael & Bellis (Brussels)
On 29 November 2017, the European Commission published a communication titled “Setting out the EU approach to Standard Essential Patents” (the “Communication”) in which it seeks to offer guidance and recommendations in relation to the licensing, valuation and enforcement of Standard Essential (...)

The Indian Competition Authority reinstates fine against national governing body for cricket for abuse of dominance and granting of exclusive licenses (Board of Control for Cricket in India)
Vaish Associates, Advocates (New Delhi)
CCI re- imposes penalty of INR 52.24 crores on BCCI for abuse of dominance* The Competition Commission of India (“Commission/CCI”) vide its Order dated November 29, 2017 has re-imposed the penalty of INR 52.24 Crores on the Board of Control for Cricket in India (“BCCI”) after fresh inquiry that (...)

The UK Competition Authority accuses a pharmaceutical company to abuse of its dominant position (Concordia)
British Competition Authority - CMA (London)
Drug company accused of abusing its position to overcharge the NHS* The CMA has provisionally found that Concordia abused its dominant position to overcharge the NHS by millions for an essential thyroid drug. The Competition and Markets Authority (CMA) has been investigating how much the (...)

The Slovenian Competition Protection Agency accepts commitments by the incumbent gas importer and supplier addressing concerns relating to long-term contracts on natural gas supply with industrial customers (Geoplin)
Fatur Law Firm (Ljubljana)
Introduction On 10 November 2017, the Slovenian Competition Protection Agency (hereinafter referred to as the CPA) has adopted a decision that renders legally binding the commitments offered by GEOPLIN LLC. (hereinafter referred to as GEOPLIN), incumbent gas importer and supplier in the (...)

Mergers

The Swedish Patent and Market Court upholds decision by Stockholm District Court that excessively long non-compete clauses in share purchase agreements do not constitute infringement of competition rules by object (Alfa Quality Moving)
European Commission
Non-compete clauses included in share purchase agreements for a period of five years do not constitute an infringement of competition rules by object* On the 29th of November, the Swedish Patent and Market Court of appeal ruled that anti-competitive clauses included in share purchase (...)

The EU General Court dismisses appeals against a Commission’s decision to open an in-depth merger investigation (HeidelbergCement / Schlenk Zement / Cemex Croatia)
Van Bael & Bellis (Brussels)
On 27 November 2017, the General Court (“GC”) dismissed appeals brought by HeidelbergCement and Schwenk Zement against the European Commission’s decision of 10 October 2016 to open an in-depth (Phase II) merger investigation into their acquisition – via a joint venture – of Cemex Croatia. In their (...)

The Russian Competition Authority clears the creation of a joint undertaking subject to remedies in the taxi market (Yandex / Uber)
Russian Federal Antimonopoly Service (Moscow)
FAS cleared merger between Yandex.Taxi and Uber, subject to conditions* On November 24, 2017 FAS agreed on the application of the Yandex N.V., Uber International C.V. for conclusion of an agreement on the creation of joint enterprise, subject to conditions. The results of analysis of the (...)

The German Competition Authority prohibits a merger on the market of sale of tickets for live entertainment (CTS Eventim / Four Artists)
German Competition Authority (Bonn)
Bundeskartellamt prohibits merger between CTS Eventim and Four Artists* The Bundeskartellamt has prohibited the planned acquisition by CTS Eventim AG & Co. KGaA of the majority of shares in the companies belonging to Konzert- und Veranstaltungsagentur Four Artists - Four Artists Booking (...)

The Indian Government exempts Oil & Gas state owned enterprises from merger control
Chandhiok & Associates (New Delhi)
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Chandhiok & Associates (New Delhi)
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Chandhiok & Associates (New Delhi)
On 22 November 2017, the Government of India issued a notification exempting Central Public Sector Enterprises (CPSEs) operating in the Oil and Gas Sectors (O&G Exemption), from a mandatory pre-merger approval requirement under the Competition Act, 2002 (Competition Act) for a period of (...)

The Indian Competition Authority approves acquisition of major IT company’s retail mobile telephony business by its telecom competitor (Airtel / Tata Teleservices)
Vaish Associates, Advocates (New Delhi)
CCI approves Airtel-Tata Teleservices Deal* CCI vide its order dated November 16, 2017 has approved the acquisition of consumer mobile business or retail mobile telephony business of Tata companies by Airtel. The deal comes at a time when the telecom sector, bruised by tariff war and mounting (...)

The Turkish Competition Board prohibits a merger in the shipping market despite remedies offered by the merging parties (UN Ro-Ro / Ulusoy)
Erdem & Erdem (Istanbul)
The Competition Board (“Board”), in its decision dated 9.11.2017 and numbered 17-36/595-259 (“Decision”), has rejected the acquisition of the full shares of Ulusoy Deniz Taşımacılığı A.Ş., Ulusoy Gemi İşletmeleri A.Ş., Ulusoy Ro-Ro İşletmeleri A.Ş., Ulusoy Ro-Ro Yatırımları A.Ş., Ulusoy Gemi Acenteliği A.Ş., (...)

The Russian Competition Authority requires several remedies before clearing a merger in the agrotechnology market (Bayer / Monsanto)
Russian Federal Antimonopoly Service (Moscow)
FAS Russia applies access and behavioral remedies in the Bayer/Monsanto merger* The Federal Antimonopoly Service of Russia (FAS Russia) has concluded a review of the merger between “Bayer AG” (Germany) and “Monsanto Company” (USA) filed according to paragraphs 8 and 9 of section 1 of article 28 of (...)

The US FTC files a complaint challenging a proposed acquisition (Red Venture / Bankrate)
Shearman & Sterling (Washington)
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Shearman & Sterling (Washington)
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Shearman & Sterling (Washington)
On November 3, 2017, the Federal Trade Commission filed a complaint challenging Red Ventures’ proposed acquisition of Bankrate. The FTC alleged that the deal likely would have lessened competition in the market for thirdparty paid referral services for senior living facilities—even though Red (...)

State Aid

The EU Court of Justice annuls three General Court Judgments regarding State aid for a television broadcaster (TV2 / Danmark)
Van Bael & Bellis (Brussels)
On 9 November 2017, the Court of Justice of the European Union (the “ECJ”) issued its judgments on appeal in three cases: Case C-656/15 P, European Commission v TV2/Danmark, Case C-657/15 P, Viasat Broadcasting UK v TV2/Danmark and Case 649/15 P, TV2/Danmark v European Commission. All three (...)

Procedures

The EU Commission publishes a Fact Sheet on Intellectual Property Rights Enforcement and a Communication setting out the EU’s approach to Standard Essential Patents
Simmons & Simmons (London)
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Simmons & Simmons (London)
The European Commission today published a Fact Sheet on Intellectual Property Rights Enforcement and a Communication setting out the EU’s approach to Standard Essential Patents (SEPs). In recognition of what it perceives as the strategic importance of SEPs and Europe’s need to grasp the enormous (...)

The EU Court of Justice receives the first preliminary ruling request on the applicability of the EU Damages Directive (Cogeco Communications / Sport TV Portugal)
Gomez Acebo & Pombo (Brussels)
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Gomez Acebo & Pombo (Brussels)
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Gomez Acebo & Pombo (Brussels)
A Portuguese court (Tribunal Judicial da Comarca de Lisboa) has referred the first preliminary ruling request on Directive 2014/104 ("the EU Damages Directive") to the Court of Justice of the EU. The reference of the case is C-637/17. The main question referred by the Portuguese court aims at (...)

Regulatory

The Government of India exempts all Central Public Sector Enterprises in the Oil and Gas sector from pre-merger scrutiny by the Indian Competition Authority
Vaish Associates, Advocates (New Delhi)
Central Govt. further dilutes competitive neutrality: exempts Oil and Gas PSU’s from Merger Control by CCI* In continuation of its slew of exemptions, the Government of India, Ministry of Corporate Affairs (MCA) , vide its recent Gazette notification dated November 22, 2017 has exempted all (...)

The Polynesian Competition Authorithy issues an opinion on the functioning of the pharmaceutical distribution sector
Polynesian Competition Authority (Papeete)
Opinion n°2017-A-03 dated November the 6th 2017 dealing with the functioning of the pharmaceutical distribution sector* The Polynesian Competition Authority took the initiative for an opinion on the functioning of the pharmaceutical distribution sector. The scope of the opinion was limited to (...)

Public sector

Advocate General Campos-Bordona proposes the EU Court of Justice to declare fines for clarification or supplementation of procurement documents as contrary to EU law only if disproportionate (Ma.t.i. Sud)
University of Bristol - Law School
AG suggests CJUE should declare fines for clarification or supplementation of procurement documents as contrary to EU law only if disproportionate (C-523/16)* In his Opinion of 15 November 2017 in case MA.T.I. SUD, C-523/16, EU:C:2017:868, Advocate General Campos Sánchez-Bordona has considered (...)

The EU General Court considers that excessive qualitative criteria in public procurement artificially narrow down competition (Jema Energy)
University of Bristol - Law School
Mixed views on General Court decision concerning claim of ’artificial narrowing of competition’ through too strict procurement selection requirements (T-668/15)* In its Judgment of 10 November 2017 in Jema Energy v Entreprise, T-668/15, EU:T:2017:796 (only available in Spanish and French), the (...)

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