October 2012

Anticompetitive practices

The Turkish Competition Authority imposes fines on two undertakings for bid-rigging, price-fixing, and information sharing on the steel straps market (Steel Straps Cartel)
TCA Fined Steel Straps Producers* According to the press release published today, Turkish Competition Authority (the TCA) imposed fines on two undertakings for bid-rigging, price-fixing, and information sharing on steel straps market. Although the details of the case has not been publicized (...)

The Higher Regional Court of Düsseldorf modifies calculation of fines for cartels and significantly lowers fines imposed by the German Federal Cartel Office (Silostellgebühren I)
Freshfields Bruckhaus Deringer (Berlin)
,
Hogan Lovells (Munich)
I. The Facts In two proceedings in 2009 and 2010 the German Federal Cartel Office (FCO) imposed total fines of about € 53,1 million (€ 39,69 million in 2009, and € 13,36 million in 2010) on several undertakings and individuals operating in the dry mortar sector. The judgement at hand concerns the (...)

The Guangdong Price Bureau of National Development and Reform Commission investigates and sanctions a cartel in the local sea sand mining sector (Baohai, Jianghai, Donghai)
China Competition Bulletin
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China Competition Bulletin
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Institute of American Studies
The Guangdong Price Bureau, a local authority of the Price Supervision and Anti-Monopoly Bureau of NDRC, has recently investigated and sanctioned a cartel in the local sea sand mining sector pursuant to the AML. According to the NDRC’s news release, the price of land reclamation sand used in (...)

The Danish Competition and Consumer Authority delivers an analytical report on consumer conditions in the estate agency market
Danish Competition and Consumer Authority (Copenhagen)
Room for Improvement in the Estate Agency Market* Consumers experience low transparency, poor possibilities for complaints and their trust in estate agents is low. In spite of active research before choosing real estate agent, many consumers are unsure whether they chose the estate agent (...)

The Serbian Competition Authority modifies its leniency decision in a case of a vertical distribution agreement with a resale price maintenance clause (Idea, Swisslion Group)
University of Technology (Tallinn)
On 25 October 2012 the Serbian Competition Authority (KZK) established that by including the resale price maintenance clause (minimum resale prices) in their distribution agreement Idea d.o.o. (distributor) and Swisslion Group d.o.o. (supplier) have concluded an anti-competitive agreement (...)

The ECJ Advocate General Cruz Villalón delivers his opinion concerning the interpretation of Article 101(1) TFEU in relation to a purely internal situation (Allianz Hungária Biztosító)
Mircea & Partners (Bucharest)
I. Introduction From the reference for preliminary ruling it follows unmistakably that the proceedings before the referring Court concern an infringement of the national competition law and that Article 101 TFEU is only circuitously contemplated. According to AG Cruz Villalón the reference to (...)

The Hungarian Metropolitan Court dismisses a claim for damages on the basis of bid-rigging established by the Hungarian Competition Office (Közlekedésfejlesztési Koordinációs Központ v Strabag Építő and Debreceni Magas, Mély és Útépítő)
lakatos, koves and partners
,
Philip Morris
On 24 October 2012, the Metropolitan Court (the "Court") dismissed the claim for damages lodged by the Traffic Development Coordination Centre (in Hungarian: "Közlekedésfejlesztési Koordinációs Központ", the "Plaintiff") made against Strabag Építő Zrt. ("Strabag") and Debreceni Magas, Mély és Útépítő (...)

The Romanian Competition Council fines a professional association for setting execution expenses and for limiting access to the market (Union of bailiffs)
Peli Filip
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Peli Filip
On 7 November 2012, the Romanian Competition Council (the “Council”) published its decision number 58 /2012 for the sanctioning of the Romanian National Union of Bailiffs (the “Union”). The professional association was fined for infringing competition rules by (i) setting enforcement expenses that (...)

The Japan Fair Trade Commission issues cease and desist orders and imposes surcharges on participants in bidding for general engineering works (MLIT Shikoku Regional Development Bureau)
Japan Fair Trade Commission (Tokyo)
The JFTC Issued Cease and Desist Orders and Surcharge Payment Orders against Participants in Bidding for General Engineering Works, etc, ordered by the Ministry of Land, Infrastructure, Transport and Tourism, and Kochi Prefecture * The Japan Fair Trade Commission (JFTC) today issued cease and (...)

The Romanian Competition Authority imposes fines on bid rigging cartel in natural gas pipelines sector (Condmag and Inspet)
European Commission
The Romanian competition authority imposes fines on bid rigging cartel in natural gas pipelines sector* On 17 October 2012, the Romanian Competition Authority (RCC) found that four undertakings had taken part in bid rigging in the framework of two public procurement procedures organised by (...)

The Spanish Competition Authority fines six companies in paper envelopes export cartel (Paper Envelopes Export Cartel)
European Commission
Spain: The Comisión de la Competencia fines six Companies in Paper Envelopes Export Cartel* In its Resolution of 15 October 2012, the Comisión Nacional de la Competencia (CNC) Council considered it proven that an infringement of Article 1 of the Spanish Competition Act and Article 101 TFEU had (...)

The Romanian Competition Council sanctions a professional association for illegal decisions adopted by what it considers to be an association of undertakings (National Union of Bailiffs)
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") released at the end of 2012 a decision ("RCC Decision") pursuant to an investigation concerning the Romanian National Union of Bailiffs ("Union"), i.e. legal professionals charged with the execution of judicial decisions, which allegedly (...)

The Hungarian Court of Appeal upholds NCA’s decision and reduces fines in IT procurement case (University cartel)
lakatos, koves and partners
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Kinstellar (Budapest)
The background of the case In 2004, the Hungarian Competition Office (HCO) launched proceedings against International System House Kft. (ISH), SAP Hungary Kft. (SAP) and International Business Machines Magyarország Kft. (IBM) for bid-rigging in public procurement. The tenders in question aimed (...)

A US District Court denies motion to dismiss an action against a SSO in a case of alleged conspiracy to exclude plaintiff’s technology from the latest 4th generation global standard for mobile telecommunications (TruePosition / Ericsson)
Davis Wright Tremaine
Antitrust & Associations: “Standard Setting Can Be Risky Business”* Virtually every industry, from telecommunications to agriculture, has benefited from standard-setting organizations (SSOs), whose collaborative work can advance technology, promote health and safety, and enhance quality and (...)

The French Competition Auhority calls for progressive lifting of restrictions on distribution of visible spare parts
European Commission
France: The Autorité de la concurrence calls for progressive Lifting of Restrictions on Distribution of visible Spare Parts* Following the launch of its sector inquiry into the automotive aftermarkets in 2011 and an open and transparent public consultation on its provisional findings, the (...)

The Moscow Arbitration Court upholds FAS Russia ruling on cartel during online open tenders (Eske, Borodina, Sirius, Blitz)
Simmons & Simmons (London)
Background & Proceedings On the 11/08/2011 theFederal Antimonopoly Service of Russian Federation began investigation of the alleged breach of the Federal Law 26.07.2006 № 135-ФЗ "On Protection of Competition" by private entrepreneur Eske, (Еске Н.Ю.), private entrepreneur Borodina (Бородинa М.А.), (...)

The Slovenian Competition Authority finds that a professional medical association infringed competition law by fixing medical tariffs (Zdravniška zbornica Slovenije)
European University Institute (Florence)
In September 2012, the Slovenian Competition Authority (hereinafter: Competition authority) issued a decision finding that the Slovenian Medical Chamber (hereinafter: Medical Chamber) violated Article 6 of the Prevention of Restriction of Competition Act (hereinafter: PRCA), and Article 101 of (...)

The Croatian Competition Authority accepts the commitments of the Croatian autoclub concerning emergency towing services (Hrvatski Autoklub)
University of Technology (Tallinn)
On 4 October 2012 the Croatian Competition Authority (AZTN) accepted the committments of the Croatian Autoclub (HAK) in relation to the non-competition clauses in the agreements for emergency technical assistance services and closed its investigation into the alleged anti-competitive practices (...)

The Competition Authority of Bosnia and Herzegovina rejects the complaint alleging the anti-competitive character of the government subsidies for energy generation from renewable sources (APEOR)
University of Technology (Tallinn)
On 4 October 2012 the Competition Authority of Bosnia & Herzegovina (KV) rejected the complaint of the Association of renewable energy producers (APEOR) alleging the anti-competitive nature of the measures adopted by the Government of the Federation of Bosnia and Herzegovina (VFBiH) for the (...)

The Competition Authority of Bosnia and Herzegovina prosecutes the Government of the Federation of Bosnia and Herzegovina for favouring domestic companies on the market for pharmaceuticals reimbursed under the national health insurance system
University of Technology (Tallinn)
On 4 October 2012 the Competition Authority of Bosnia & Herzegovina (KV) qualified the actions of the Government of Federation of Bosnia and Herzegovina (the Government) that accorded preferential treatment to the domestically produced medicines under the national health insurance scheme as (...)

Unilateral Practices

The EU Commission sends SOs to software company regarding failure to comply with commitments relating to web browsers and identifies additional issues relating to release of new software (Microsoft)
Van Bael & Bellis (Brussels)
On 24 October 2012, the European Commission announced that it sent a Statement of Objections (“SO”) to Microsoft informing the company of the Commission’s preliminary view that Microsoft failed to comply with its commitments designed to enable users to more easily choose their preferred web (...)

The Czech Office for Protection of Competition again fines telecoms operator for abuse of dominance on the market for telecom services for business customers (Telefónica Czech Republic)
Kinstellar (Prague)
Subject matter of the case: a first decision of the Office The Office for the Protection of Competition ("Office") imposed a fine of CZK 93,109,000 (approximately EUR 3,724,000 ) on Telefónica Czech Republic, a.s. ("Telefónica") for abuse of dominance on the market for public telecom services (...)

Mergers

The Canadian Competition Bureau and airline companies reach agreement on controversial transborder joint venture (Air Canada, United Continental)
Canadian International Joint Commission
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Canadian International Joint Commission
Introduction On 23 October 2012 Canada’s Competition Bureau (the Bureau), an independent law enforcement agency that assists the Commissioner of Competition (the Commissioner) in the administration and enforcement of the Competition Act, reached a consent agreement with Air Canada and United (...)

The US FTC gets an extension to review acquisition in the rental-car service industry (Hertz/Dollar Thristy)
Wolters Kluwer (Riverwoods)
Hertz Gives FTC More Time to Review Its Proposed Acquisition of Dollar Thrifty* What would likely be the last major acquisition in the car rental industry may soon be completed, with the blessing of the Federal Trade Commission. The pending acquisition of Dollar Thrifty Automotive Group, Inc. (...)

The Dutch Competition Authority grants a permit to telecom operator for the acquisition of four fiber-optic providers (KPN / Concepts ICT / Edutel / XMS / KickXL)
Stibbe (Amsterdam)
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Stibbe
Introduction On 16 October 2012, the Netherlands Competition Authority ("NMa") granted a permit for a proposed concentration between KPN B.V. ("KPN") and Concepts ICT Holding B.V. ("Concepts"), Edutel Beheer B.V. ("Edutel"), Xtra Media Services B.V. ("Xtra") and KickXL B.V. ("KickXL"). (...)

The French Constitutional Council upholds the constitutionality of the French Competition Authority’s power to withdraw merger clearance decisions and of its internal organisation (Canal +, Vivendi)
Herbert Smith Freehills (Paris)
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Gide Loyrette Nouel (Paris)
Following a request for a preliminary ruling on constitutionality by Groupe Canal Plus (“Canal Plus”) and Vivendi Universal (“Vivendi”, parent company of Canal Plus), on 12 October 2012 the French Constitutional Council upheld the constitutionality of the power of the French Competition Authority (...)

The German Competition Authority prohibits hospital merger, rejecting failing firm defence (Klinikum Worms / Hochstift hospitals)
Van Bael & Bellis (Brussels)
On 5 October 2012, details were published concerning a 5 September 2012 decision by the German Federal Cartel Office (“FCO”) prohibiting a proposed merger between two hospitals in Worms, a city on the west bank of the Rhine River in southwest Germany. According to the FCO, the proposed (...)

The Dutch Competition Authority approves under strict conditions the acquisition of the travel information activities of railway operator (ProRail / NS Reizigers)
VVGB
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VVGB
On the 3rd of October 2012, the Dutch Competition Authority approved under strict conditions the acquisition of the travel information activities ProRail B.V. by NS Reizigers B.V. I. The Parties The Dutch undertaking NS Reizigers B.V., which is a subsidiary of the NS Groep N.V., 100% owned (...)

State Aid

The EU Commission finds that the arrangements for the extension of the exclusive right to operate 13 games of chance in Greece don’t appear to confer an economic advantage (OPAP)
College of Europe (Bruges)
Article published on Lexxion State Aid Blog The Curious Case of Applying the Market Economy Investor Principle to a Monopoly* On 3 October 2012, the European Commission concluded, in case SA.33988, that OPAP, the Greek operator of games of chance received no state aid because the Market (...)

Procedures

The Danish Competition and Consumer Authority proposes introduction of imprisonment and significantly higher fines for competition law infringements
Van Bael & Bellis (Brussels)
On 26 October 2012, the Danish Competition and Consumer Authority (“DCCA”) put forward a proposal for revising the Danish Competition Act and the Danish Penal Code. The changes are primarily aimed at introducing the possibility of imprisonment for infringements of Article 101 TFEU and the (...)

The Danish Competition and Consumer Authority interviewes 1 800 undertakings about their efforts to comply with the competition and consumer legislation and adopts a report
European Commission
The Danish Competition and Consumer Authority interviewes 1 800 Danish undertakings about their efforts to comply with the competition and consumer législation and adopts a report* The purpose of the Danish Competition Act (konkurrenceloven – Competition Act) and Danish consumer legislation is (...)

The UK Supreme Court rules on the matter of time limits as regards follow-on claims arising from the vitamin cartel (BCL / BASF)
Blackstone Chambers
BCL No.2: The Supreme Court addresses time limits in follow-on claims* The White Paper which first proposed follow-on damages claims promised a “swift” and “streamlined” procedure. The idea was that when a regulator had made an infringement finding, there would be a simple way for victims to claim (...)

A NY District Court authorizes disclosure of portions of the grand jury testimony of two witnesses who had testified during the criminal investigation in the consolidated civil antitrust cases challenging alleged collusion in air cargo charges (Air Cargo Shipping Services)
Jones Day (Washington)
,
Jones Day (Cleveland)
The U.S. magistrate judge in the consolidated civil antitrust cases challenging alleged collusion in air cargo charges has authorized disclosure of portions of the grand jury testimony of two witnesses who had testified during the criminal investigation conducted earlier by the U.S. Department (...)

The UK Supreme Court clarifies limitation period for follow-on damages actions in the Competition Appeal Tribunal (BCL Old Co v BASF)
DLA Piper
The Supreme Court, in its decision in BCL Old Co v BASF, has clarified the limitation period for bringing follow-on action claims for damages in the Competition Appeal Tribunal (the “CAT”). The Supreme Court upheld the Court of Appeal’s earlier ruling that: An action for follow-on damages in the (...)

US Eastern District Court of New York approves class settlement in a price-fixing lawsuit brought against Vitamin C manufacturers (Vitamin C Antitrust Litigation)
Cohen Milstein (Washington)
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Cohen Milstein (New York)
In determining whether to finally approve a class settlement reached with one defendant, the court considered the objections of several members of the proposed indirect purchaser settlement class regarding class counsel’s decision to forego a monetary distribution to the class and instead make a (...)

The English Court of Appeals affirms Competition Appeals Tribunal’s broad discretion on costs in appeals against cartel decisions of the OFT under SI 2003/1372 s.55(2) (Quarmby v OFT)
Berlin Freie Universität
Appellants Quarmby Construction and its parent St James Securities Holdings (Quarmby) were found to have engaged in bid rigging in relation to five tenders for construction contracts in northern England between 2000 and 2006 and were fined £881,749. Quarmby appealed the decision to the (...)

The US Southern District of New York addresses the question of standing for named class representatives (DDAVP Indirect Purchaser Antitrust Litigation)
Cohen Milstein (Washington)
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Cohen Milstein (New York)
When class actions in recent years have been brought asserting claims on behalf of indirect purchasers under state laws that have repealed Illinois Brick, defendants have frequently argued that named class representatives lack "standing" to assert claims in a class action under the laws of (...)

The French Constitutional Council upholds NCA’s power to withdraw merger approval (Canal plus)
Jones Day (Brussels)
,
Jones Day (Paris)
,
Jones Day (Paris)
The French Constitutional Council has declared constitutional the French Competition Authority’s power to (i) withdraw its decision authorizing a merger, for failure by the parties to comply with their commitments and (ii) has required that the parties re-notify their transaction. This is an (...)

The French Constitutional Council confirms the NCA’s ability to sanction companies breaching their merger remedies (Canal Plus)
Hewlett Packard (Boulogne-Billancourt)
,
Fieldfisher (Paris)
In its decision dated 12 October 2012, the French Constitutional Council (“Conseil constitutionnel”) confirmed the constitutionality of the provisions of the French Commercial Code (“FCC”) relating to (i) the ability of the French Competition Authority to sanction companies having breached their (...)

The France’s administrative Supreme Court limits rights of appeal against Competition Authority’s opinions (Casino)
Norton Rose Fulbright (London)
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Falcon & Hume
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Norton Rose Fullbright (Sidney)
It has been held that when the French Competition Authority issues “opinions”, these are not challengeable before the courts in the same way as the authority’s formal decisions. On 11 October 2012, France’s Administrative Supreme Court rejected two appeals brought by supermarket chains against (...)

The Spanish Competition Council analyses collaboration protocol in dairy sector and collaboration agreement on olive oil
European Commission
Spain: The Comisión de la Competencia analyses Collaboration Protocol in Dairy Sector and Collaboration Agreement on Olive Oil* In October 2012, the Comisión Nacional de la Competencia (CNC) adopted two reports analysing the Collaboration Protocol and Agreement in the Dairy (link in Spanish) and (...)

The President of The Hague District Court holds that the Dutch Competition Authority cannot engage in "fishing expeditions"
Van Bael & Bellis (Brussels)
On 5 October 2012, President of The Hague District Court ruled in interim proceedings that the Dutch Competition Authority (“NMa”) cannot order third parties to provide information incriminating undertakings against which the NMa has insufficient information to initiate competition law (...)

The Cypriot Commission for Protection of Competition imposes fines for not providing the information requested during the investigation of a complaint in the postal sector (DPS)
Commission for the Protection of Competition of the Republic of Cyprus
The Commission for the Protection of Competition decided to impose a fine to the Department of Postal Service for the infringment of Section 30 (3) of Law No. 13(I)/2008, in relation to the complaint submitted by Andreas Alexandrou Accessories Ltd against the Department of Postal Services* (...)

The Belgian Competition Council annuls, for lack of motivation, the decision to close a case against deontological rules for lawyers (Ordre des barreaux francophones et germanophone)
Liège University - IEJE
,
Philippe & Partners (Brussels)
I. The Parties Mr [...] and the SPRLU [...] are two Belgian lawyers whose identity is kept undisclosed. L’Ordre des barreaux francophones et germanophone (“OBFG”) is the professional association of French-speaking and German-speaking bars lawyers. The OBFG defines most of the deontological rules (...)

The Italian Competition Authority requests modifications in legislation in field of leniency policy and merger review
European Commission
The Italian Competition Authority requests modifications in legislation in field of leniency policy and merger review* In the report issued at the beginning of October 2012 (see this ECN Brief), the Italian Competition Authority (ICA) stated that efforts to promote competition need to be (...)

The UK OFT publishes updated guidelines on its decisionmaking processes, in preparation for a wider reform of the UK competition law regime
Morgan Lewis (London)
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Squire Patton Boggs (London)
,
Jones Day (London)
The UK Office of Fair Trading ("OFT") has published updated guidelines on its decisionmaking processes, in preparation for a wider reform of the UK competition law regime. The goals of the OFT’s revised procedures are quicker and fairer decisions by the OFT in enforcing UK and EU antitrust (...)

Regulatory

The Federal Antimonopoly Service of Russia proposes new pricing guidelines
RBB Economics (Brussels)
,
RBB Economics (Brussels)
Introduction In October 2012, the head of the Federal Antimonopoly Service of Russia (FAS) presented new pricing Guidelines for Russian companies. The document discusses various benchmarks for “fair” or “economically justified” prices that can be charged to domestic customers. Although the (...)

The UK OFT finds that almost three-quarters of state schools continue to restrict the availability of uniforms fact that results in price differences to the detriment of parents (School uniforms)
University of Cambridge
Back to school for the OFT?* On 25 October 2012 the Office of Fair Trading announced that it had written to the head teachers of almost 30,000 State schools to draw attention to the high price of school uniforms. The high price is caused in part by 74% of schools requiring parents to purchase (...)

The Spanish Competition Authority issues a report warning that few operators control the fuel market after oil companies raise their margins by 20% since the start of the crisis
University of Castilla-La-Mancha (UCLM)
The hydrocarbon prices in Spain, before taxes, are the highest in Europe. The CNC has studied the reasons for this fact and it has concluded that the lack of competition, the strong corporate concentration and the difficulty in accessing these kind of markets are to blame. The CNC has described (...)

Public sector

A Romanian Appellate Court considers the principle of equal treatment in the context of the temporary validity of tender offers (WTE, Keviep, Bilfinger Berger)
Babes-Bolyai University
A recent case brought before Romanian courts raised the issue of diligence during suspension of the public procurement procedure. It regarded the period of availability of offers and the role of contracting authorities / tenderers in securing the continuous availability of offers. The object (...)

The Swedish Competition Authority issues a decision concerning pecuniary sanctions imposed on administrative agency for an illegal award of a contract (Agency for Economic and Regional Growth, New Grand Hotel)
Mircea & Partners (Bucharest)
I. Introduction The staff banquet day organized by Agency for Economic and Regional Growth (’Agency’) on the 23 May 2012 has been awarded to New Grand Hotel AB without prior advertisement. The value of the contract is of approximately SEK 600,000 (more exactly of SEK 608,908). The Swedish (...)

The Chinese Ministry of Finance invites comments on the draft measures on the administration of non-tender government procurement
China Competition Bulletin
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China Competition Bulletin
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Institute of American Studies
Pursuant to China’s Government Procurement Law and other relevant laws and regulations, the Ministry of Finance published a draft of the Measures on the Administration of Non-tender Government Procurement (draft Measures) for public consultation on 17 October 2012. The consultation period (...)

The EU General Court establishes a demanding standard for the duty to give reasons in procurement cases (Sviluppo Globale GEIE)
European Procurement Law Group
Duty to give reasons under EU procurement law and EU trademark law: is there a contradiction?* Even if they may seem two – rather disconnected – areas of legal practice, reading cases on EU public procurement and on EU trademark law sometimes offers interesting insights into broader issues of EU (...)

The EU General Court issues a new decision concerned with the extent of the duty to provide reasons to disappointed tenderers (Sviluppo Globale)
European Procurement Law Group
Again on procurement debriefing and its excesses: Extent of the duty to give (very detailed) reasons to bidders and right to a fair trial (T-183/10)* In its Judgment of 10 October 2012 in case T‑183/10 Sviluppo Globale GEIE v Commission, the General Court has issued a new decision concerned (...)

The EU Court of Justice rules that the risk of anticompetitive collusion as a consequence of an excessive level of transparency in the debriefing of disappointed bidders must be taken into consideration by the Commission (Evropaïki Dynamiki)
European Procurement Law Group
Risk of anti-competitive collusion after excessive level of transparency in public procurement debriefing?* In its Judgment of 4 October 2012 in case C‑629/11 P Evropaïki Dynamiki v Commission (ESP-ISEP), the Court of Justice has issued another interesting decision on what should be considered (...)

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