September 2003

Anticompetitive practices

The European Court of First Instance delivers its judgment in the TACA case upholding the Commission decision concerning infringements of articles 81 and 82 of the EC Treaty
European Commission - DG COMP
"The TACA judgment: lessons learnt and the way forward"* Introduction On 30 September 2003, the Court of First Instance (CFI) delivered a long-awaited judgment in the Transatlantic Conference Agreement (‘TACA’) case. The case concerned the organisation of containerised liner shipping services (...)

The German Federal Cartel Office imposes fines on two manufacturers for infringing the prohibition to influence retail sale prices in an anticompetitive way (Swissphone Telecommunications / Ansmann Energy)
Linklaters (Dusseldorf)
Description of the impugned case One case deals with in indirect RPM clause: the producer of telecommunication equipment provided his dealers with rebates under the condition that they would maintain the recommended sale prices (Swissphone). In the other case, the producer of batteries and (...)

The Japan Fair Trade Commission issues a consent decision concerning bidding for paving works (Noguchi Hodo)
Japan Fair Trade Commission (Tokyo)
Consent Decision to Noguchi Hodo K.K.* The JFTC had decided to initiate hearing procedures against Noguchi Hodo K.K. on 20 June 2003 and has been having examiners conduct the procedures. The JFTC received a request for consent decision and plans for specific measures from Noguchi Hodo K.K. (...)

A US Court of Appeals invalidates rules of two cards network service providers that prohibit member banks from issuing competitors’ cards (Visa USA, MasterCard, American Express, Discover)
WilmerHale (Washington)
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Hughes Hubbard & Reed (Washington)
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Stanford University
Background Visa and Mastercard are network services providers that are owned and supported by thousands of member banks, which act as both issuers [1] and acquirers [2] of Visa and Mastercard charge cards. (Network services (...)

The US Court of Appeals for the 11th Circuit holds that a reverse payment agreement between a brand-name pharmaceutical company and a generic would-be competitor should be analyzed under the “scope of the patent” test to determine antitrust liability (Abbott/Geneva/Zenith)
United First Partners
Introduction In Valley Drug Co. v. Geneva Pharm., Inc. (“Valley Drug”), the Eleventh Circuit adopted the “scope of the patent” test to evaluate validity of reverse payment agreements between a brand-name pharmaceutical manufacturer and generic would-be competitors. The court viewed the case in (...)

A US Court of Appeals holds that antitrust law is not implicated provided that the terms of “pay for delay” settlements between the brand name and generic pharma companies are within the scope of the patent (Valley Drug/Abbott Laboratories)
Hill, Kertscher & Wharton (Atlanta)
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Sutherland
A recent 11th Circuit case, Valley Drug Co. v. Geneva Pharmaceuticals, Inc., sheds light on the complex intersection of patent and antitrust law in the context of a settlement agreement between a name brand pharmaceutical manufacturer and two allegedly infringing generic manufacturers that (...)

The Japan Fair Trade Commission imposes surcharges on participants in bidding for landscaping works (Kanto Landscaping and Construction Cooperative)
Japan Fair Trade Commission (Tokyo)
JFTC issues decision to order surcharges to Kanto Landscaping and Constructing Cooperative.* The JFTC, on 8 September 2003, issued a decision to Kanto Gardening and Construction Cooperative in accordance with Section 54-2 (1) of the Antimonopoly Act after the hearing procedures initiated on 22 (...)

The French Competition Council authorizes a franchisor to recommend a maximum resale price on its franchisees (Plus International)
Terre Azur (Pomona Group)
Description of the impugned case In a case of a franchising agreement, the franchisor recommended to franchisees to respect a maximum price during promotional and non-promotional period. The French competition Council considers that the pricing policy implemented by the franchisor was not (...)

The German Federal Cartel Office imposes a fine on the producer of electrical products for having concluded anticompetitive agreements on the pricing of certain products, for having threatened third parties with disadvantages in order to induce them to behave in an anticompetitive manner and for having illegally recommended certain retail prices (Akkutechnische Erzeugnisse)
Linklaters (Dusseldorf)
Description of the impugned case The case deals with both, a straightforward RPM system and indirect RPM clauses. On the one hand, the producer directly agreed on a certain pricing structure with ebay dealers, thereby infringing the (at that time applicable) German law prohibition on the fixing (...)

Unilateral Practices

The Polish competition authority establishes that a town has abused of its dominant position by limiting the number of resellers for public transportation (Commune W.)
French National Research Agency (ANR)
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Orrick, Herrington & Sutcliffe (Washington)
On September 19th 2003, the President of the Office for the Competition and Consumers Protection (hereafter, OCCP President or, President of the Office) decided that the practice of Commune W. to limit the number of persons eligible to sell fixed term tickets for the city public transportation (...)

The French Competition Authority sanctions the telecommunication incumbent for having broken injunctions ordered to address an abuse of a dominant position on the market for trade in telephone subscriber lists (France Télécom)
French Competition Authority (Paris)
Press Release published on the official website of the French Competition Authority. Universal directory : France Télécom sanctioned by the Conseil de la concurrence for breaching an injunction.* Following a referral by the companies Sonera France (now Fonecta) and Scoot France, the Conseil de (...)

Mergers

The European Commission conditionally clears a merger between French and Canadian companies in the market for aluminium products (Pechiney/Alcan)
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European Commission - DG COMP
"Merger Control: Main developments between 1st September 2003 and 31st December 2003"* On 29 September the Commission cleared the proposed acquisition of French aluminium producer Pechiney by Alcan of Canada. The transaction was notified to the Commission on 14 August. Canada’s Alcan and (...)

The Lithuanian Competition Council cleared a merger in the markets of concrete with remedies, including commitment of non-discriminatory pricing and various contractual provisions (Betoneta/Markuèiai)
Vodafone (Istanbul)
The operation By a decision dated 25 September 2003, the Lithuanian Competition Council authorized in phase II the acquisition by UAB Betoneta (« Betoneta ») of 100 % shares of AB Markuèiai (« Markuèiai »). The market(s) The relevant markets have been defined by the Council as markets for concrete (...)

The French Minister of Economics cleared a merger in the market of document and cheque processing with remedies (Experian Holding France / Atos Investissement)
French Competition Authority (Paris)
The operation The Experian company Acquired the document and cheque processing business of Atos. The market The relevant market has been defined as the cheque processing market. Remedy 1: Unenforceability of the non-competition clause The Minister noted that the transaction would lead to (...)

The Czech Competition Office clears a merger in the TV broadcasting and TV advertising markets subject to maintenance of third parties access under existing business terms and conditions (PPF/Nova Holding)
Clifford Chance
The operation In merger concerned, PPF (CYPRUS) LIMITED ("PPF"), and three individuals acquired joint control over NOVA HOLDING, a.s. ("Nova Holding") under a shareholders agreement, which followed the share purchase agreement and the related agreement on transfer of rights and obligations (p. (...)

The Lithuanian Competition Council cleared an acquisition in the market of retail trade in oil products with remedies, including commitment not to merge into one company (Maþeikiø nafta/Uotas)
Vodafone (Istanbul)
The operation By a decision dated 3 September 2003, the Lithuanian Competition Council authorized in phase I the acquisition by AB Maþeikiø nafta (« Maþeikiø nafta ») of 100 % shares of UAB Uotas (« Uotas ») (increase of shareholding from 85 % to 100 %). The market(s) The relevant market has been (...)

The European Commission approves, subject to remedies, a merger in the medical devices market giving a practical example of the use of quantitative analyses in merger control (GE/Instrumentarium)
RBB Economics (Brussels)
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European Commission - DG COMP
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Capgemini (Washington)
"GE/Instrumentarium: a practical example of the use of quantitative analyses in merger control"* On 2 September 2003, the European Commission approved, subject to conditions, the acquisition by General Electric Medical Systems (‘GE’) of the Finnish firm Instrumentarium. The Commission was (...)

The European Commission conditionally clears a merger in the medical devices market (GE Medical Systems / Instrumentarium)
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European Commission - DG COMP
"Merger Control: Main developments between 1st September 2003 and 31st December 2003"* In September the Commission approved, subject to conditions, the acquisition by GE Medical Systems of the Finnish firm Instrumentarium. The proposed acquisition was notified to the Commission on 28 February (...)

The French Minister of Economy cleared with structural and behavioural remedies a merger in the refrigerated body manufacture sector (Lamberet/Chereau)
French Competition Authority (Paris)
The operation Through this transaction, Lamberet acquired the sole control of Chereau. Both companies offered a range of industrial vehicles specially designed for cold transport. The market(s) concerned by remedy(ies) The Minister assessed the effects of the merger in relation to the (...)

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