October 2014

Anticompetitive practices

The US FTC settles charges of indirect price fixing (Blue Rhino, AmeriGas)
Weil, Gotshal & Manges (New York)
Blue Rhino and AmeriGas Agree to Settle FTC Claims of Propane Tank Price-Fixing* On October 31, 2014, the Federal Trade Commission (“FTC” ) agreed to a settlement with Blue Rhino and AmeriGas Cylinder Exchange, the two leading suppliers of propane exchange tanks, regarding FTC charges that the (...)

The Federal Court of Australia finds no breach of legislation in air cargo cartel case on ground that it did not involve a ‘market in Australia’ (Air New Zealand)
Deakin University
The Australian Federal Court recently handed down a decision relating to the international air cargo cartel (the Air NZ case). Despite finding that the defendants, Air New Zealand Limited (Air NZ) and PT Garuda Indonesia Ltd (Garuda), had engaged in price fixing conduct which might have (...)

A US District Court allows bid-rigging claims concerning municipal tax lien auction to proceed (New Jersey tax sales certificates)
Siemens (New York)
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Patterson Belknap Webb & Tyler
Antitrust Claims Survive Motions to Dismiss in the New Jersey Tax Lien Bid-Rigging Class Action* The plaintiffs’ antitrust claims in the New Jersey municipal tax lien auction bid-rigging class action may proceed, the federal judge presiding over the litigation has ruled. New Jersey (...)

The Competition Commission of India imposes penalties on companies for price-fixing through circulation of daily price bulletins amongst themselves and limitation of supply (Indian Sugar Mills)
Vinod Dhall and Talwar Thakore & Associates
Guest Post From India: “Of Price Bulletins and Dawn Raids”* Trade associations seem to be the flavor of the day for the CCI these days. Less than 4 days after passing an order fining the Chemists and Druggists Association, Goa, the Competition Commission of India (the “CCI”) has imposed penalties (...)

The Finnish Competition and Consumer Authority proposes to fine a power line builder for participating in a cartel (Eltel and Empower)
Finnish Competition and Consumer Authority (FCCA)
The FCCA proposes a EUR 35 million fine on power line builder Eltel for participating in a cartel* The Finnish Competition and Consumer Authority (FCCA) today submitted a proposal to the Market Court to impose a fine of EUR 35 million on Eltel Networks Oy and Eltel Group Oy (hereinafter (...)

The Swedish Competition Authority closes an investigation into retail price maintenance in sport nutrition market (13:e Protein Import)
European Commission (Brussels)
SCA Closes Investigation into Retail Price Maintenance in Sport Nutrition Market* On 30 October 2014, the Swedish Competition Authority (SCA) adopted a reasoned priority decision not to pursue the investigation of a complaint regarding alleged resale price maintenance infringing Chapter 2 (...)

The Spanish Competition Authority fines a telecom operator for restrictions in its mobile services contracts with small and medium-sized businesses (Telefónica Móviles)
European Commission (Brussels)
CNMC Fines Telefónica Móviles* On 30 October 2014, Telefónica Móviles was fined € 25 784 341 for switching restrictions in its mobile services contracts with small and medium-sized businesses (SMEs). The Comisión Nacional de los Mercados y la Competencia (CNMC) found that this practice unfairly (...)

The High Court of Justice of England and Wales provides guidance on application of limitation periods in damages actions (Arcadia)
St John’s Chambers
United Kingdom: High Court provides guidance on application of limitation periods in damages actions* The High Court has recently provided guidance on the application of limitation periods in competition damages actions. In Arcadia v Visa, it ruled that a substantial part of the claimant’s (...)

The Czech Office for the Protection of Competition imposes fines on two undertakings for bid rigging in the sector of supply of fire and rescue technology and equipment (Požární bezpečnost and Perspekta)
Czech Competition Authority
Suppliers of fire equipment sanctioned for bid rigging* Office for the Protection of Competition (hereinafter referred to as “the Office”) imposed by its first instance decision fines of CZK 972,000 on undertakings Perpekta, spol. s.r.o a Požární bezpečnost s.r.o. for breaching the Act on the (...)

The Office of Thai Trade Competition Commission proposes changes to Thailand’s Trade Competition Act 1999
Rajah & Tann (Singapore)
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Rajah & Tann (Bangkok)
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Rajah & Tann (Bangkok)
Introduction The Office of Thai Trade Competition Commission in Thailand (‘OTCC’) recently discussed proposed changes to Thailand’s Trade Competition Act 1999 (the ‘Act’) during a public hearing held on 28 October 2014. This is the first substantial review of the Act since its enactment in 1999. (...)

The Moscow Arbitration Court confirms the bid-rigging decision of the Russian Competition Authority on the case on crab auctions (Aquaresource)
Russian Federal Antimonopoly Service
Arbitration Court supported FAS position on the case on crab auctions* On 27th October 2014, Moscow Arbitration Court dismissed the claim of “Aquaresource- DV” Ltd. to invalidate FAS decision and determination. On 19th February 2014 FAS found that “Aquaresource- DV” Ltd., “Taifun” Ltd., and (...)

A US District Court dismisses with prejudice a class action insofar as the class action’s plaintiffs have not overcome the pleading deficiencies following the first judicial review of their pleadings (OTC Hotel Booking)
Stanford University - Stanford Law School
U.S. District Court for the Northern District of Texas dismissed Second Consolidated Amended Complaint against hotel chains and online travel agencies* On 28 October 2014 the U.S. District Court of the Northern District of Texas dismissed with prejudice a class action against hotel chains and (...)

The Competition Commission of India fines chemists trade association for continuing to violate its order (Chemists and Druggists Association)
Vinod Dhall and Talwar Thakore & Associates
Competition Commission of India fines chemists trade association for continuing violation of its order* On 27 October 2014, the Competition Commission of India (CCI) following a complaint filed by M/s Xcel Healthcare, a stockist for pharmaceuticals in the state of Goa, found that the Chemists (...)

The Romanian Competition Council analyzes the compatibility between national law provisions on the trade of dietary supplements with the provisions of EU treaties on free movement of goods (Advanced Nutrition)
DLA Piper Dinu SCA (Bucharest)
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DLA Piper Dinu SCA (Bucharest)
Introduction The Romanian Competition Council ("RCC") published in October 2014 a decision concerning the alleged discriminatory conditions created by the national legislative framework regarding the trade of dietary supplements in Romania ("RCC Decision"). The analysis carried out by the RCC (...)

The Italian Competition Authority adopts national guidelines on antitrust fines
Bonelli Erede Pappalardo (Rome)
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Bonelli Erede Pappalardo (Rome)
In its decision of 22 October 2014 the Italian Competition Authority (“ICA”) adopted the Guidelines on modalities of implementation of criteria for quantification of administrative penalties imposed by the Italian Competition Authority under Section 1, Article 15, of Law No. 287 of 10 October (...)

The EU Commission sends formal charges to companies regarding a cooperation agreement which may have limited availability of a product and technical development (Honeywell, DuPont)
Stanford University - Stanford Law School
Commission sends formal charges to Honeywell and DuPont regarding cooperation on car air conditioning refrigerant* On 21 October 2014 the European Commission issued formal charges to Honeywell and DuPont, based on allegations that the cooperation agreement they entered into in 2010 on the (...)

The French Civil Supreme Court requests justification on how belonging to a group may be considered an aggravating factor in setting antitrust fines (Allez)
DLA Piper (Paris)
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Hertslet Wolfer & Heintz (Paris)
On 21 October 2014, the French Civil Supreme Court issued a decision regarding bid rigging in the public contract sector. Following an investigation of the Directorate-General for Competition, Consumption and the Fight against Fraud, the French Competition Authority found ten undertakings (...)

The European Commission imposes fines of nearly 94 millions euros of four major banks for collusive behaviours (RBS, JPMorgan, UBS, Credit Suisse)
Constantine Cannon (London)
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King’s College (London)
European Commission Settles Two Swiss Franc-Related Derivatives Investigations* The European Commission has settled two cartel investigations and sanctioned four major banks in the Swiss Franc-related derivatives market, imposing total fines of approximately 94 million euros, for violations of (...)

U.S. Federal Court Provides Guidance on Treating Joint Ventures as a "Single Entity" for Antitrust Purposes (Premier)
Jones Day (Washington)
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Jones Day (Washington)
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Jones Day (Cleveland)
The United States District Court for the Southern District of Ohio has unsealed its summary judgment opinion in The Medical Center at Elizabeth Place v. Premier Health Partners. The Court granted summary judgment in favor of the defendants—four hospital systems that operated pursuant to a joint (...)

The US District Court for the Southern District of Ohio holds that undertakings, even previously competing against each other, cease to be separate economic actors once they contractually agree to share in risks and profits by combining all of their income into a single bottom line (Premier Health)
Sheppard Mullin (Los Angeles)
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Sheppard Mullin (Century City)
District Court Weighs in on Level of Integration Required to Shield Health Care Collaborations from Section 1 Scrutiny* In Medical Center at Elizabeth Place v. Premier Health Partners et. al, Case No. 12-cv-26 (S.D. Oh. Oct. 20, 2014), the Southern District of Ohio held that (...)

The Hungarian Competition Authority imposes fines on four regional publishers for having implemented an anticompetitive agreement aiming to share markets in the county-wide daily newspapers market (Axel Springer)
Hungarian Competition Authority (Budapest)
Regional publishers shared the market of county-wide daily newspapers* The Hungarian Competition Authority (Gazdasági Versenyhivatal – GVH) established that Axel Springer Magyarország Kft. (Axel Springer, its new name: Mediaworks Kft.), Russmedia Kft. (Russmedia, its former name: Inform Média), (...)

A US appellate panel questions whether reverse payments need to be in cash to put the patent settlement under the scrutiny of antitrust laws (GlaxoSmithKline)
DLA Piper Weiss-Tessbach (Vienna)
Reverse payments can be non-cash according to appellate judges* On 19 November 2014 in a hearing regarding the possible reopening of a lawsuit over whether GlaxoSmithKline (GSK) unfairly extended the monopoly on its drug Lamictal, an appellate panel of the Third Circuit suggested that reverse (...)

The Slovak Antimonopoly Office imposes fines on a municipality for advantaging an undertaking in the funeral and cemetery services market (Rimavská Sobota)
Slovak Competition Authority
Rimavská Sobota was imposed a fine for advantaging an undertaking in the area of funeral and cemetery services* On 19 October 2014 the Antimonopoly Office of the Slovak Republic, Division of Cartels issued a decision by which it imposed a fine on municipality of Rimavská Sobota in the amount of (...)

The Cyprus Commission for the Protection of Competition imposes a fine of 2.1 million Euro on the Cyprus Cattle-farmers Association (Cyprus Cattle-farmers Association)
Chrysses Demetriades & Co. LLC (Limassol)
1. Background In its decision dated 17/10/2014 the Cypriot Commission for the Protection of Competition (the “CPC”) held that the Cyprus Cattle-farmers Association (also referred as “CCA” and the “association”) violated a number of provisions of the Cyprus Law on the Protection of Competition (“the (...)

The Polish Competition Authority monitors implementation of commitments by an oil and gas exploration and production company to modify contractual relations with customers (PGNiG)
European Commission (Brussels)
UOKiK Monitors Implementation of Commitments by PGNiG to Modify Contractual Relations with Customers* On 17 October 2014, the Office of Competition and Consumer Protection (UOKiK) initiated proceedings to determine whether Polskie Górnictwo Naftowe i Gazownictwo (PGNiG), Poland’s largest oil and (...)

The US Supreme Court hears oral arguments before interpreting the state action exemption to the antitrust laws (North Carolina Board of Dental Examiners)
University of Michigan
On October 14, 2014, the Supreme Court will hear oral arguments in North Carolina Board of Dental Examiners v. FTC, the latest in its long line of cases interpreting the state action exemption to the antitrust laws. Dozens of amici have written briefs supporting both parties. Those briefs (...)

The US District Court for the Eastern District of Pennsylvania rules that claims of “good faith reliance on counsel” were not sufficient to maintain a Capper-Volstead affirmative defense to allegations that immunity had been forfeited by the inclusion of non-producer members (Mushroom Direct Purchaser)
Sheppard Mullin (Los Angeles)
Agricultural Cooperative Antitrust Litigation Continues to Mushroom* Pennsylvania District Court certifies five year ruling for interlocutory appeal, that mushroom cooperative is not immune from antitrust claims based upon “advice of counsel” argument. In Re Mushroom Direct Purchaser Antitrust (...)

The US District Court for the Eastern District of Pennsylvania rules that claims of “good faith reliance on counsel” were not sufficient to maintain a Capper-Volstead affirmative defense to the antitrust laws (Mushroom Direct Purchaser)
BakerHostetler (Washington)
Mushroom Court Ruling Sprouts Controversy on Whether Reliance on Lawyer Advice Maintains Affirmative Defense to Antitrust Claims* A federal district court recently ruled that claims of “good faith reliance on counsel” were not sufficient to maintain a Capper-Volstead affirmative defense to the (...)

The Bulgarian Supreme Administrative Court confirms the sanction imposed by the Bulgarian Competition Commission on several undertakings for having implemented a vertical anticompetitive agreement in the sunflower oil market (Zvezda and COOP - Trade and Tourism)
Bulgarian Commission for the Protection of Competition
SAC upholds sanctions for prohibited agreement on the sunflower oil market* Last week the Supreme Administrative Court upheld in full measure sanctions for the sunflower oil producer “Zvezda” AD and its main distributer “COOP - Trade and Tourism” AD, respectively amounting to BGN 85 673 and BGN 76 (...)

The Polish Court for the Competition and Consumer Protection upholds the NCA’s decision regarding price fixing within a restaurant franchising network (Sfinx)
Małgorzaty Kozak (Warsaw)
The court of the Competition and Consumers Protection (the Court) upheld the decision of 25 June 2013 of the President of the Polish Office of Competition and Consumers Protection (NCA) stating that Sfinx Polska SA (Sfinx) infringed the art. 6 (1) (1) of the Polish Act on competition and (...)

The Moscow Arbitration Court confirms the fines imposed on several companies for cartel in the market of supplying swai from Vietnam (Russian Fish Company)
Russian Federal Antimonopoly Service
The Court supported FAS in a case on the cartel for supplying swai from Vietnam* On 1st October 2014, Moscow Arbitration Court confirmed legitimacy of the decision of the Federal Antimonopoly Service (FAS Russia) on a case on anticompetitive agreement on the market of frozen swai imported from (...)

The Moscow Arbitration Court confirms the decision of the Russian Competition Authority sanctioning dealers for resale price maintenance (VMZ)
Russian Federal Antimonopoly Service
The Court supported FAS decision with regard to “Vyazma Machine-Building Works” and its dealers* On 1st October 2014, Moscow Arbitration Court dismissed a claim of “Vyazma Machine-Building Works” OJSC (“VMZ” OJSC) and its dealers to invalidate a decision of the Federal Antimonopoly Service (FAS (...)

The Osaka High Court issues an injunction preventing a taxi company from physically blocking independent taxi drivers lining up and acquiring customers at taxi stands outside two stations and awarded damages to the independent taxi drivers (Drivers / Shintetsu)
McDermott Will & Emery (Brussels)
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Anderson Mori & Tomotsune (Tokyo)
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Anderson Mori & Tomotsune (Tokyo)
I. Introduction On 31 October 2014, the Osaka High Court (“Court”) found that Shintetsu engaged in an unfair trade practice in violation of the AMA by physically preventing the Drivers from seeking and acquiring customers at taxicab stands outside two Kobe Electric Railway Co., Ltd’s stations (...)

The German Competition Authority following its cartel proceeding forces an association of pharmacists to forego an anticompetitive clause in the sale of blood glucose strips market (AVWL)
German Competition Authority (Bonn)
Bundeskartellamt strengthens competition in the sale of blood glucose strips in Westphalia-Lippe* The Bundeskartellamt has concluded its cartel proceeding against the pharmacists association in Westphalia-Lippe (Apothekerverband Westfalen-Lippe e.V. Apothekerverband Westfalen-Lippe e.V. (...)

Unilateral Practices

The Irish Competition Authority publishes an enforcement decision concerning state postal services provider (An post)
European Commission (Brussels)
Competition Authority Publishes Enforcement Decision concerning State Postal Services Provider* On 30 October 2014, the Competition Authority (Authority) published an Enforcement Decision following an investigation into how An Post - the State postal service provider - applied its Zonal (...)

The Turkish Competition Authority closes its investigation into an electricity distribution and retail company for increasing the switching costs for eligible customers and impeding the opportunities of competitors (Ayedas)
University of Sussex
This case note analyses the decision of the Turkish Competition Authority (TCA) in which it has closed the investigation it launched into an electricity retail sale company, AYESAS, for unilaterally including most of the eligible customers into its own portfolio without signing an agreement (...)

The Russian Competition Authority fines a pharmaceutical laboratory having not executed a warning (Teva)
Russian Federal Antimonopoly Service
TEVA is fined for failure to execute FAS determination* On 20th October 2014, the Federal Antimonopoly Service (FAS Russia) held TEVA PHARMACEUTICAL INDUSTRIES LIMITED (Israel) administratively liable for failure to execute a determination and fined the company 300,000 RUB. In December 2013, (...)

The Chinese Supreme Court issues the first decision based on economic analysis under Anti-Monopoly Law (Qihoo / Tencent)
CRA International (Washington)
On October 16, 2014, the Chinese Supreme People’s Court (SPC) announced its ruling on the landmark antitrust litigation brought by Qihoo 360 against Tencent. The decision marked the SPC’s first ruling on a matter filed under China’s Anti-Monopoly Law (AML), which came into effect in August 2008. (...)

The Chinese Supreme Court sets up the standard for antitrust private litigation with detailed analysis method in regard to market definition and dominance establishment (Qihoo / Tencent)
AnJie Law (Beijing)
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AnJie Law (Beijing)
When the Antitrust Encounter the Internet: The Legal Battle between Qihoo 360 and Tencent Finally Comes to the End* The outgoing year has witnessed the significantly increasing role of „Antitrust‟ and „Internet‟ played in China‟s economy. With the Supreme People‟s Court („SPC‟) ratified the original (...)

The Chinese Supreme Court elaborates detailed fundamental principles of anti-monopoly law, in particular in the context of abuse of dominance on the internet market, in its first anti-monopoly case (Qihoo / Tencent)
King & Wood Mallesons (Beijing)
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King & Wood Mallesons (Beijing)
The Supreme Court Goes Online with Anti-Monopoly Law Principles:A Review of Qihoo v.s. Tencent Abuse of Market Dominance Case* Introduction On 15 November 2011, Qihoo issued proceedings against Tencent in the Guangdong Higher Court, asserting that Tencent had abused its dominant position, (...)

The European Commission hits telecoms with fines of 70 millions euros for abusing the Slovak broadband market (Slovak Telecom)
Constantine Cannon (London)
European Commission Hits Telecoms With Fines Of 70 Million Euros For Abusing Slovak Broadband Market* Co-written by Yulia Tosheva. The European Commission has signalled that it is not dialing down its scrutiny of the telecommunications sector by imposing fines totalling 70 million euros on (...)

The Belgian Competition Authority dismisses a complaint of an independent rough diamond dealer because of the low likelihood of finding an infringement taking into account the international context of the file (De Beers and Spira)
Belgian Competition Authority (Brussels)
The Prosecution body of the Belgian Competition Authority decides to dismiss the complaint of Spira against De Beers* The Prosecution body of the Belgian Competition Authority has decided to dismiss a complaint of Spira against De Beers. This decision is motivated by the priority management of (...)

The Russian Competition Authority issues a warning to an oil and gas provider suspected to abuse of its dominance (Transneft” AK)
Russian Federal Antimonopoly Service
FAS issued warnings to “Transneft” for untimely intentions* On 14th October 2014, the Federal Antimonopoly Service (FAS Russia) issued a warning to Deputy Vice-President – Director of the Department for Transport, Record Keeping and Quality of Oil Products of “Transneft” AK” OJSC, Nazarov, the (...)

The Moscow Arbitration Appeal Court confirms that the behavior of an authority has created disadvantages having resulted in monopolization of the relevant market pushing the only competitor out of the market (Cash Settlement Centre)
Russian Federal Antimonopoly Service
Appeal Court: Cheboksary Authority created advantages for “Cash Settlement Centre” OJSC in the prejudice of a competitor* On 8th October 2014, the 9th Arbitration Appeal Court upheld the judgment of Moscow Arbitration Court that the decision and determination on the case on violating the (...)

The Russian Competition Authority open proceedings against railways company for failure to execute the warning (Russian Railways)
Russian Federal Antimonopoly Service
“Russian Railways” does not give commuter trains* “Russian Railways” OJSC avoided concluding a rolling stock lease contract with “Interregional Passenger Company” Ltd. (“MRPK” Ltd. is not included in the Group of persons of “Russian Railways” OJSC) for commuter transportation of passengers in the (...)

The Russian Competition Authority sanctions the main suppliers of cards for tachographs for abused of dominance (RusAvtoKart)
Russian Federal Antimonopoly Service
The leading suppliers of cards for tachographs abused market dominance* The Federal Antimonopoly Service (FAS Russia) found that the main suppliers of cards for tachographs – “RusAvtoKart” Ltd., “RusTAKHONET” OJSC and “NIIAT” OJSC violated the Law “On Protection of Competition” (Clause 1 Part 1 (...)

The French Competition Authority accepts commitments from a railway company in the distribution of train tickets market (SNCF and voyages-sncf.com)
French Competition Authority (Paris)
The Autorité de la concurrence obtains commitments from SNCF allowing travel agencies to compete on an equal footing with voyages-sncf.com. Following these changes, travellers should enjoy an enhanced offer of services.* Summary Following a complaint submitted to the Autorité de la concurrence (...)

The Russian Competition Authority welcomes the enforcement of the warning by a gas provider aiming to stop the competition concerns (Gazprom)
Russian Federal Antimonopoly Service
FAS warning solved a consumer problem that could not be resolved for three years* “Gazprom” executed a warning of the Federal Antimonopoly Service (FAS Russia) and eliminated elements of violations of the antimonopoly law. The antimonopoly authority was notified about executing the warning on (...)

The Competition Commission of India gives an order on the emerging jurisprudence of interface between intellectual property and competition law (HT Media / Super Cassettes)
Jindal Global University
On October 1, 2014, Competition Commission of India (CCI) gave its final order on a yet another case making some vital contributions to the shaping of the law on the emerging jurisprudence of interface between intellectual property and competition law regimes in India. While this case sets a (...)

Mergers

The French Competition Authority clears the takeover of a mobile phone operator subject to structural and behavioural commitments (SFR / Numéricable)
Herbert Smith Freehills (Paris)
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Herbert Smith Freehills (Paris)
Introduction On 30 October 2014, following an in-depth review, the French Competition Authority (the "FCA") authorised the takeover of the mobile phone operator SFR by Numericable Group, a wholly-owned subsidiary of Altice. Before the transaction, SFR was wholly owned by the Vivendi group; (...)

The German Competition Authority clears a merger following an in-depth examination on the production of foreign identity documents market (Giesecke & Devrient / Bundesdruckerei)
German Competition Authority (Bonn)
Bundeskartellamt clears joint venture between Giesecke & Devrient and Bundesdruckerei for the production of foreign identity documents* Following an in-depth examination the Bundeskartellamt has cleared the establishment of a joint venture for the production of foreign identity documents (...)

The Hungarian Competition Authority interprets the notion of a “direct participant” and confirms that non-competition obligation clauses which benefit the vendor are unlikely to qualify as ancillary restraints (Ringier Axel Springer / Central Médiacsoport)
Kinstellar (Budapest)
On 29 October 2014 the Hungarian Competition Authority cleared the acquisition of two employment websites by Ringier Axel Springer Media AG(“RASMAG”), but warned that the restrictions imposed on the purchaser in the sale and purchase agreement may not qualify as ancillary restraints. It also made (...)

The French Competition Authority clears, subject to remedies, an acquisition in the high-speed broadband access market (SFR / Numéricable)
French Competition Authority (Paris)
The Autorité de la concurrence gives conditional clearance to the acquisition of SFR by Numericable, an Altice subsidiary. * Among the commitments discussed and negotiated with the Autorité de la concurrence, Numericable commits to give competitors (internet service providers, MVNO) access to (...)

The Hellenic Competition Commission clears an acquisition of sole control in the insurance market (ERGO International / Agrotiki Asfalistiki)
Hellenic Competition Authority (Athens)
Clearance of the proposed acquisition by «ERGO International Aktiengesellschaft» of the insurance company “AGROTIKI ASFALISTIKI S.A.». * By its unanimous Decision 594/2014, the Hellenic Competition Commission (HCC) approved, under Greek merger control rules, the proposed acquisition of sole (...)

The German Competition Authority clears an acquisition of sole control in the gas markets and changes its practice of defining these markets (EWE / VNG)
German Competition Authority (Bonn)
Bundeskartellamt clears EWE’s acquisition of a majority interest in VNG* Today the Bundeskartellamt has cleared the acquisition of a further 15.79% of the shares in VNG AG, Leipzig, by EWE AG, Oldenburg. EWE AG acquired the shares from Wintershall Holding GmbH, Kassel. EWE AG will now hold a (...)

The Finnish Competition and Consumer Authority clears, subject to remedies, an acquisition in the chicken feed market (DAVA Foods / Muna Foods)
Finnish Competition and Consumer Authority (FCCA)
The Finnish Competition and Consumer Authority approved egg business acquisition subject to conditions* On 21 October 2014, the Finnish Competition and Consumer Authority (FCCA) approved an acquisition whereby DAVA Foods Holding A/S, a Danish company, acquires control of the Finnish company (...)

The European Commission clears the acquisition of a Dutch cable TV operator by a competitor, subject to conditions (Liberty Global / Ziggo)
European Commission - DG COMP (Brussels)
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European Commission - DG COMP (Brussels)
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European Commission - DG COMP (Brussels)
"Liberty Global/Ziggo: Consolidation and Innovation in Telecoms"* In the midst of the telecoms consolidation wave observed in Europe and the US, the Commission’s review of Liberty Global/Ziggo highlights the risk that fixed network consolidation can pose to innovation. Even in the (...)

The Lithuanian competition authority clears a merger subject to commitments in the insurance sector (PZU / Lietuvos draudimas)
Valiunas Ellex (Vilnius)
On 9 October 2014 the Lithuanian competition authority adopted a decision clearing the acquisition of 100% shares of AB “Lietuvos draudimas” by PZU S.A., subject to commitments. The transaction concerned Lithuanian insurance sector and it entailed a horizontal concentration between two of the (...)

The Polish Competition Authority clears the creation of a joint undertaking in the power generation and distribution market (Polska Grupa Energetyczna / Polska Miedź)
Polish Competition Authority (Warsaw)
The OCCP approves the formation of PGE EJ 1* The Office of Competition and Consumer Protection (OCCP) has approved the formation of PGE EJ 1, a joint undertaking of the energy groups PGE Polska Grupa Energetyczna, Tauron, and Enea and of the mining group KGHM Polska Miedź to build Poland’s (...)

The Lithuanian Competition Council conditionally clears an acquisition on the market of the insurance of land vehicles and the market of property insurance (AB Lietuvos draudimas / PZU)
Lithuanian Competition Authority (Vilnius)
COMPETITION COUNCIL CLEARS ACQUISITION OF AB LIETUVOS DRAUDIMAS BY PZU S.A., SUBJECT TO CONDITIONS* On 9 October, the Competition Council (KT) cleared the acquisition of 100 per cent of AB Lietuvos draudimas shares by PZU S.A. The merger was cleared upon the condition that PZU S.A. would sell (...)

The German Competition Authority clears an acquisition on the food retail market (Jibi Handel / J. Bünting Beteiligungs)
German Competition Authority (Bonn)
Bundeskartellamt clears takeover of Jibi by Bünting* The Bundeskartellamt has today cleared the complete acquisition of Jibi Handel GmbH & Co. by J. Bünting Beteiligungs AG in the first phase of merger control. Andreas Mundt, President of the Bundeskartellamt: "By acquiring 88 Jibi outlets (...)

The Netherlands Authority for Consumers and Markets clears a merger of three care providers in the northern Dutch province of Friesland (Kwadrantgroep, Antonius Zorggroep and Nij Smellinghe/Pasana)
Netherlands Authority for Consumers & Markets (The Hague)
ACM clears merger between three northern care providers* The Netherlands Authority for Consumers and Markets (ACM) has cleared the merger of three care providers in the northern Dutch province of Friesland, which are Kwadrantgroep, Antonius Zorggroep and Nij Smellinghe/Pasana. These three care (...)

The Croatian Competition Agency clears a merger in the market of guest accommodation and catering services in hotels, apartments and campsites and in the market of guest accommodation (Plava laguna / Istraturist)
Croatian Competition Agency
Approved merger between Plava laguna and Istraturist* The Croatian Competition Agency approved the implementation of the proposed concentration between the undertakings Plava laguna and Istraturist. The concentration in question will produce effects in the following relevant markets: guest (...)

The EU Commission approves without commitments an acquisition in the recent information technology sector (Facebook / WhatsApp)
Squire Patton Boggs (Brussels)
EU Commission approves Facebook’s acquisition of WhatsApp* On 3 October 2014, the European Commission of the European Union (the “Commission”) approved the acquisition without any commitments. After the approval of the acquisition of Skype by Microsoft in 2011 and of the acquisition of Nokia by (...)

The EU Commission unconditionally approves in first phase an acquisition in the digital sector (Facebook / WhatsApp)
European Commission (Brussels)
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European Commission - DG COMP (Brussels)
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European Commission - DG COMP (Brussels)
"What’s Up with Merger Control in the Digital Sector? Lessons from the Facebook/WhatsApp EU merger case"* The Facebook/WhatsApp decision provides an insight into how the Commission tackles novel issues in the application of merger control rules to the digital sector, in particular to free (...)

The EU Commission unconditionally clears an acquisition in the social media sector (Facebook / WhatsApp)
Clifford Chance (Madrid)
Background information On 3 October 2014 the European Commission ("Commission") unconditionally clears in first phase the €14 billion acquisition of WhatsApp by Facebook (the “Transaction”). The Transaction was already conditionally authorized in April 2014 by the US Federal Trade Commission (...)

The Polish competition authority clears an acquisition in the small package delivery sector (DPD / seven)
WKB Wierciński Kwieciński Baehr (Warsaw)
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Freshfields Bruckhaus Deringer (Brussels)
In its decision of 1 October 2014, the Polish competition authority (Urząd Ochrony Konkurencji i Konsumentów, the "UOKiK") unconditionally cleared DPD’s 100% acquisition of shares in a fellow small package delivery company, Siódemka (in English: “seven”). This decision is one of a limited number of (...)

State Aid

The European Commission reminds Member States of mistakes they can avoid when they compensate operators on whom they impose public service obligations (Dublin Bus and Irish Bus)
College of Europe (Bruges)
Public Service Obligations: A Few More Mistakes that Can Be Avoided* Even efficient companies will fail the 4th Altmark criterion if their costs are not proven to be comparable to those of a typical and well-equipped undertaking. Public funding of infrastructure is not State aid to users only (...)

The European Commission explains that a system which is predominantly based on solidarity does not become economic in nature when operators have a small degree of discretion to compete on quality and to make profit from efficient provision of services (Spoločná zdravotná poisťovňa)
College of Europe (Bruges)
Compulsory health insurance in Slovakia* Health insurance which is based on the principle of social solidarity is not economic in nature. Solidarity means that citizens have a right to the service in question and the quality of the service they obtain is not linked to the price they pay, if (...)

The European Commission holds that the granting of exclusive rights may confer an advantage but does not in itself result in transfer of state resources (Jadrolinija Imuna Pharm)
College of Europe (Bruges)
Exclusive Rights* The granting of exclusive rights may confer an advantage but does not in itself result in transfer of state resources. Private undertakings that hold exclusive rights are not utilising state resources by the mere fact that they operate under rights conferred by the state. (...)

The European Commission holds that infrastructure projects which are economic in nature are subject to State aid scrutiny regardless of their importance (Øresund Fixed Link)
College of Europe (Bruges)
An Important Project of Common European Interest* Infrastructure projects which are economic in nature are subject to State aid scrutiny regardless of their importance. However, public funding of transport networks which are open to all users does not constitute State aid. Introduction State (...)

The EU Commission finds that tax amortisation of financial goodwill arising from the acquisition of foreign companies constitutes State aid that is incompatible with the internal market (Spain)
College of Europe (Bruges)
Corporate taxation* Last October, the Commission adopted decision 2015/314 which was published in the Official Journal on 27 February 2015. In this decision, the Commission finds that tax amortisation of financial goodwill arising from the acquisition of foreign companies constitutes State aid (...)

The European Commission accepts a nuclear power station funding scheme after getting the State to renegociate the terms of the contract (Hinkley Point C)
University of Sussex
State Aid for Nuclear Power: No Thanks! Maybe? Yes Please!* The Commission’s decision on the Hinkley Point C nuclear power station of 8th October 2014 and what this might mean for the approach to nuclear energy... In 2014, the European Commission adopted new Guidelines on State aid for (...)

The EU Commission open an investigation concerning transfer pricing arrangements on corporate taxation of an online store in Luxembourg (Amazon)
European Commission - DG COMP (Brussels)
State aid: Commission investigates transfer pricing arrangements on corporate taxation of Amazon in Luxembourg* The European Commission has opened an in-depth investigation to examine whether the decision by Luxembourg’s tax authorities with regard to the corporate income tax to be paid by (...)

The European Commission continues to scrutinize tax rulings to check their compliance with the arm-length principle and State Aid rules (Amazon)
University of Oxford
Luxembourg, Amazon, and the State aid connection* The Commission’s opening decision: What should we make of Amazon’s ‘advance pricing agreement’ (APA) and its alleged (non-) compliance with the ‘arm’s length principle’ (ALP)? In early October 2014, the European Commission notified Luxembourg of its (...)

The European Commission holds that public funding of infrastructure which is open to any user does not constitute State aid (Propapier)
College of Europe (Bruges)
Use of Publicly-Funded Infrastructure without State Aid* Public funding of infrastructure which is open to any user does not constitute State aid. Public funding for the upgrading/extension of infrastructure in view of expected increase in the number of users is not State aid as long as it is (...)

Procedures

The Italian Competition Authority issues new guidelines on the method for setting fines for antitrust infringements
Simmons & Simmons (Milano)
,
Simmons & Simmons (Rome)
The Italian Competition Authority’s fining guidelines set out principles for calculating fines and thrust antitrust compliance programmes into the limelight. On October 31, 2014, the Italian Competition Authority (ICA) issued its new “Guidelines on the method for setting fines for antitrust (...)

The High Court of Justice of England and Wales holds that the trigger for the running of time for limitation purposes in a competition claim is not the discovery of every potentially relevant fact in the broadest sense (Arcadia)
Blackstone Chambers
“It’s too late baby, now it’s too late”: limitation, competition claims and knowledge* How much knowledge does a potential claimant need before time begins to run against a competition claim against a party alleged to have breached competition law? This was the key question addressed by Mr Justice (...)

The UK High Court of Justice orders the disclosure of a four-years old unpublished decision of the European Commission to a confidentiality ring of claimants and defendants (Emerald Supplies)
Blackstone Chambers
High Court tests the limits of confidentiality in EC infringement decisions* The European Commission came in for some stern criticism from the High Court this week, in a case which looks set to test the boundaries of confidentiality in EC infringement decisions: see Emerald Supplies v BA (...)

The French government adopts the implementing decree of the French class action system
University Panthéon-Sorbonne (Paris)
,
Ashurst (Paris)
The French Consumer Act of 17 March 2014 - the Hamon Law - introduced a class action system into French Law under articles L. 423-1 to L. 423-26 of the Consumer code. Based on an "opt- in" format, consumer associations play a major part in this process. Following the adoption of the (...)

The Canada Supreme Court rules that civil antitrust plaintiffs may receive wire-tap evidence obtained in a criminal investigation (Imperial Oil)
Siemens (New York)
,
Patterson Belknap Webb & Tyler
Civil Antitrust Attorneys Receive Wire-Tap Evidence* The Canada Supreme Court ruled earlier this month that civil antitrust plaintiffs may receive wire-tap evidence obtained in the criminal investigation into an alleged price-fixing scheme by several large gas companies. During the criminal (...)

The Canadian Supreme Court confirms plaintiffs’ ability to obtain disclosure of wiretap evidence obtained in connection with criminal competition law investigations (Imperial Oil)
Steve Szentesi Law Corporation
Canadian Supreme Court Clears Criminal Wiretap Evidence For Use in Competition Class Actions* In an important decision released on October 17, 2014, Imperial Oil v. Jacques, 2014 SCC 66, the Canadian Supreme Court confirmed plaintiffs’ ability to obtain disclosure of wiretap evidence obtained (...)

The French administrative Supreme Court transfers the litigation relating to decisions made by the Competition Authority on the protection of trade secrets to administrative courts (Syndicat national des fabricants d’isolants en laines minérales manufacturées)
Dechert (Paris)
,
Norton Rose Fulbright (Paris)
In a judgment dated October 10, 2014, the French administrative Supreme Court (Conseil d’Etat) ordered the Prime Minister to repeal in part article R. 464-29 of the Commercial Code. The decision transferred de facto a part of the litigation relating to the decisions made by the chief case (...)

A US District Judge holds that an antitrust compliance policy can fall outside of attorney-client privilege (Domestic Drywall)
Siemens (New York)
,
Patterson Belknap Webb & Tyler
Are Antitrust Compliance Programs Protected by Attorney-Client Privilege?* We’ve previously written about the components of effective antitrust compliance programs and the potential benefits corporations may achieve by adopting them. (Read some of our posts here and here.) In drafting (...)

The European Court of Human Rights condemns Czech Republic for lack of effective independent control of competition dawn raids (Delta Pekarny)
BPV Braun Partners
No More Dawn Raids in the Czech Republic* For a few weeks now, the Czech Antitrust Office has stopped its dawn raids. The reason for this stems from the surprising decision of the European Court of Human Rights in Strasbourg (ECHR) dated 2 October 2014 (DELTA PEKARNY a.s., complaint number (...)

Regulatory

The Hellenic Competition Authority accepts the modifications of commitments concerning the supply of natural gas through electronic auctions (DEPA)
Hellenic Competition Authority (Athens)
HCC accepts the amendment of commitments concerning the supply of natural gas through electronic auctions, as proposed by DEPA* By its unanimous Decision No 618/2015, the Hellenic Competition Commission (HCC) accepted a proposal from DEPA to revise partly the commitments adopted with earlier (...)

The Lithuanian Competition Authority holds that a municipality privileged its established undertaking and restricted competition in the taxi services in the city of Vilnius (Vilnius veza)
Max Planck Institute for Innovation and Competition (Munchen)
On 22 October 2014 the Competition Council adopted the decision, in which it held that the council of the municipality of Vilnius infringed Article 4(1) and Article 4(2) of the Law on Competition of the Republic of Lithuania by the decisions and the acts, which were related to the provision of (...)

The UK Competition and Markets Authority hands a provisional decision and proposes solutions to resolve competition concerns on the payday lending market
UK Competition and Markets Authority (CMA) (London)
CMA sets out proposals to lower payday loan costs* The CMA has set out proposals to increase price competition between payday lenders and help borrowers get a better deal. These proposals have been developed in light of the Financial Conduct Authority’s (FCA) price cap proposals announced this (...)

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