September 2005

Anticompetitive practices

The Irish Competition Authority settles its action against the Irish medical professional association in return for commitments to refrain from anti-competitive practices (Irish Hospital Consultants Association-IHCA)
London School of Economics
The terms of a settlement agreement, reached between the Irish National Competition Authority (hereinafter “NCA”) and the Irish Hospital Consultants Association (henceforth “IHCA”), were published by the former in a press release issued on the 28th September, 2005. In February 2003, the NCA (...)

The Irish NCA assesses the prices and exclusive provisions of a major entertainment events tickets reseller on the basis of both national and EC competition laws (TicketMaster Ireland)
London School of Economics
The National Competition Authority has rejected allegations that TicketMaster (hereinafter “TicketMaster”) Ireland is abusing its dominant position through excessive pricing and that its exclusive contractual relations with certain promoters constitute infringements of Art 81 EC and its domestic (...)

The European Commission publishes a paper concerning issues of competition in waste management systems
European Commission - DG COMP (Brussels)
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European Commission - DG COMP (Brussels)
"Competition issues in waste management systems"* 1. Introduction On 22 September 2005, DG Competition published the ‘DG Competition Paper concerning issues of competition in waste management systems’ (the Paper) on its internet website. The Paper sets forth key competition issues, in (...)

The Hungarian Competition Office fines 14 road construction companies for price fixing, market sharing and bid rigging (Adeptus Rt.)
lakatos, koves and partners
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lakatos, koves and partners
The Hungarian Competiton Office (HCO) launched proceedings against fourteen road construction companies (Alterra Kft., Betonút Rt., Debreceni Mély- és Útépítõ Rt., EGÚT Egri Útépítõ Rt., Hídépítõ Rt., HÓDÚT Rt., Hoffmann Rt., MÁV Hídépítõ Rt., MOTA-Engil Rt., Strabag Rt., Swietelsky Kft., Vakond Kft. and (...)

The Hungarian Competition Authority fines construction companies for bid rigging in six construction tenders (Adeptus)
Van Bael & Bellis
On 22 September 2005, the Hungarian Competition Authority (the GVH) decided to fine fourteen construction companies a total of over HUF 1.3bn (approximately €5.2m) for bid rigging. In dawn raids conducted at the premises of five large construction companies, the GVH found several incriminating (...)

The Paris Court of Appeal holds that Art. 81 EC does not apply to a hairdressing franchise national network and that the provided “clause d’agrément” does not amount to a hardcore restriction (Socovi/Jean-Louis David)
Kramer Levin Naftalis & Frankel (Paris)
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Eversheds Sutherland (Paris)
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Eversheds Sutherland (Paris)
Background SARL SOCOVI, the franchisee, had entered into a franchising agreement with Jean Louis David SA, the franchisor, whereby the latter granted the former the right to run a franchise for the purposes of marketing hairdressing products and services. It included inter alia the right to (...)

The Polish Competition Authority condemns five undertakings for bid rigging in local public tender proceedings (Poznan)
French National Research Agency (ANR)
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Orrick, Herrington & Sutcliffe (Washington)
President of the Office of Competition and Consumer Protection (Prezydent Urzedu Ochrony Konkurencji i Konsumentów), September 21st, 2005, Decision n° RPZ-28/2005 concerning the bid rigging between five entrepreneurs during the street and square cleaning services tender in Poznan for the year (...)

The Hungarian Competition Council finds 8 construction companies guilty of bid rigging in respect of a road construction contract (Municipality of Budapest)
Smartflats
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Liège University - IEJE
In a public procurement concerning the construction of roads in the municipality of Budapest, eight construction companies have been found guilty of bid-rigging. In a nutshell, they decided among themselves which company would get the contract by coordinating their tenders in advance during (...)

The European Commission fines nine companies a total of € 43.5 M for participating in industrial thread cartels (Ackermann Nähgarne, Amann und Söhne, Barbour Threads, Belgian Sewing Thread, Bieze Storck, Coats Viyella, Gütermann and Zwicky & Co)
European Commission - DG COMP (Brussels)
"Commission fines nine companies a total of € 43.5 million for participating in industrial thread cartels"* On 14 September 2005, the European Commission fined thread producers a total of € 43.5 million for operating cartels in the market for industrial thread. Industrial thread is used in a (...)

The Hungarian Competition Authority finds an exclusivity clause has an effect on trade between member States and may distort competition in the sport events sector (Aréna, Multimédia Light and Sound, Ticketpro)
Hogan Lovells
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Background Aréna Üzemelteto Rt. received the right from the Hungarian State to be the controlling company of the Budapest Sports Stadium (hereinafter: the Budapest Sports Stadium). Aréna was, at the time of the investigation, an affiliate of the French Bouygues group. Multimédia Light and Sound (...)

The Hungarian Competition Authority concludes that the agreements offered by the Budapest Sports Stadium are capable of distorting competition and have the potential of infringing Art. 81 EC (Arena Uzemelteto / Multimedia Light and Sound / Ticketpro)
KNP Law Nagy Koppany Varga & Partners
The Budapest Sports Arena (BSA), a 12,000 seating capacity, state of the art, multifunctional sports and entertainment complex was first opened to the public in March 2003. It was built on the place of the Budapest Sports Hall, which was completely destroyed in a devastating fire five years (...)

The Polish Competition Authority launchs enquiries on price fixing in the retail distribution sector (Polifarb Cieszyn, Wrocaw)
Sulima Grabowska Sierzputowska
The Head of the Office for Competition and Consumer Protection (the “Head of the OCCP”) suspected that Polifarb Cieszyn-Wroclaw S.A. - a producer of paints and varnish products - as well as seven supermarkets selling building products, namely Praktiker, Obi, Castorama, Leroy Merlin, Nomi, (...)

The UK Office of Fair Trading concludes that an agreement between banks to set a default interchange fee is restrictive of competition, contrary to both Art. 81 EC and national mirror competition provision (MasterCard UK)
Hogan Lovells (London)
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Hogan Lovells (London)
On 6 September 2005, the UK Office of Fair Trading (“OFT”) announced its Decision following a long running investigation of MasterCard UK Members Forum Limited (“MMF”) default interchange fee arrangements. The Decision itself was published on 13 October 2005. The OFT concluded that the parties had (...)

The Portuguese Competition Authority issues a notice giving detailed reasons for the general prohibition of price-fixing agreements addressed in particular to professional associations
London School of Economics
In its most recent decisions (see “The Portuguese Competition Authority finds that the deontological code of the professional association of veterinaries infringes Art. 81 EC by imposing minimum fees for the supply of professional services”, e-Competitions, july 2005, Article n° 144 ; “The (...)

The OFT finds collective agreement between banks setting the multilateral interchange fee contrary to both Art. 81 EC and national competition provisions (MasterCard UK)
Freshfields Bruckhaus Deringer (London)
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King’s College (London)
On 6 September the UK Office of Fair Trading issued a decision concluding that the collective agreement between members of MasterCard UK Members Forum setting a fallback multilateral interchange fee infringed Article 81 EC and Chapter I of the Competition Act 1998. The Decision only concerns (...)

A Czech Regional Court confirms that the provision of the Veterinary Chamber’s professional code of conduct, which prohibits veterinary doctors from providing services to clients owing an outstanding debt to another veterinary doctor, restricts competition (Veterinary Chamber’s professional code of conduct)
Government of the Czech Republic
On 6 August 2005 the Regional Court in Brno delivered a decision whereby it affirmed an earlier decision by the Office for the Protection of Competition, in which the Office had found that the provision of the Veterinary Chamber’s professional code of conduct which prohibits veterinary doctors (...)

A Polish Court overturns the NCA decision against a pharmaceutical company and its distributor for customer allocation due to lack of anticompetitive effects on the market (Johnson & Johnson - Hurtofarm)
Hogan Lovells (Warsaw)
Background The Polish Competition and Consumers’ Protection Court (“Sad Ochrony Konkurencji i Konsumentów”) on September 5, 2005 issued a decision on the appeal lodged by Johnson & Johnson Poland and Hurtofarm against the decision of the President of the Office of Competition and Consumer (...)

The US DOJ requires two digital jukebox undertakings to end an illegal non-compete agreement (NSM, Ecast)
Jones Day (Washington)
On September 2, 2005, the DOJ Antitrust Division issued a complaint and proposed settlement involving two digital jukebox companies — NSM Music Group Ltd.(NSM) and Ecast Inc. (Ecast) — that allegedly entered into an unlawful agreement pursuant to which NSM agreed not to enter the U.S. market with (...)

The Greek NCA fines several professional associations for having imposed minimum fees for the rendering of dental services (Hellenic Dental Association)
Hellenic Institute of International and Foreign Law (HIIFL)
The case concerned the fixing of compulsory tariffs of minimum fees of their members by seven regional dental societies, namely the Dental Societies of Attica, Piraeus, Achaia, Heraclion, Serres, Magnesia, and Thessalonica. This practice was assisted and guided by the Hellenic Dental (...)

Unilateral Practices

The UK Competition Appeal Tribunal issues a key judgement on margin squeeze and rebates in the pharmaceuticals sector (Healthcare at Home / Genzyme)
Freshfields Bruckhaus Deringer (London)
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King’s College (London)
In Genzyme Limited v. OFT, 29 September 2005, the UK Competition Appeal Tribunal (the “CAT”) tackled the difficult question of how to bring an abusive margin squeeze to an end and to ensure it was not repeated. The background to the proceedings was that the OFT had issued a decision (Director (...)

A US Court of Appeals finds that the application of misuse of patent standard related to CD-R/CD-RW licensing dispute was flawed (Philips)
Sheppard Mullin (Los Angeles)
Patent Misuse And Antitrust Tying Analysis – Close But Imperfect Substitutes* Federal Circuit Holds That Patent Pools Without Anticompetitive Effects Are Lawful In U.S. Philips Corp. v. International Trade Commission. On September 21, 2005, the Court of Appeals for the Federal Circuit reversed (...)

The Spanish Competition Authority reaches a settlement agreement with the incumbent in the postal sector bringing to an end a complaint for predatory pricing practices (Correos/ASEMPRE)
London School of Economics
On 21 January 2002, the Asociación Profesional de Empresas de Reparto y Manipulado de Correspondencia (hereinafter, “ASEMPRE”), an association gathering undertakings active in the postal sector, lodged a complaint against the Sociedad Estatal de Correos y Telégrafos (“Correos”), the incumbent in the (...)

The Hungarian Competition Authority finds that the telecommunications incumbent abused its dominant position by setting excessively high wholesale prices for network access (Magyar Telekom)
Smartflats
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Liège University - IEJE
On 6 September 2005, the Hungarian Competition Authority found Magyar Telekom guilty of abuse of dominance by setting supra competitive wholesale prices for network access to “toll-free” and “reduced-toll” telephone numbers - the so called “coloured numbers”. In Hungary, “toll-free” and (...)

The UK Competition Appeal Tribunal quashes a decision of the Office of Fair Trading on the absence of an infringement by a dominant undertaking in the Scottish milk market for reasons of inadequate investigation and limited analysis of the facts of the case (Claymore/Wiseman)
University College London
This case relates to an appeal brought by Claymore Dairies Ltd (hereinafter “Claymore”), a processor of fresh milk active in Scotland, against the decision of the Office of Faire Trading (“OFT” to the effect that there was insufficient evidence that its competitor Robert Wiseman Dairies Plc (...)

The German Competition Authority fines a drugstore chain for offering digital photo services below cost price (Schlecker)
Freshfields Bruckhaus Deringer (Berlin)
Bundeskartellamt (Federal Cartel Office), 1st September 2005, Schlecker (Press Release) In September 2005, the German Federal Cartel Office (“FCO”) imposed a fine of an undisclosed amount against Schlecker, the largest German drugstore chain, for offering digital photo services to end-customers (...)

The German Federal Cartel Office holds that a so-called occasional promotion is an abuse of market power and imposes a fine for unfair competition (Schlecker)
McDermott Will & Emery (Düsseldorf)
Background Under EC Council Regulation n° 1/2003, of 16 December 2002, on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJEU L 1, 4 january 2003, p. 1-25), the Member States are not precluded from adopting and applying on their territory national (...)

Mergers

The Latvian Competition Council clears a merger in the markets for data transmission services and Internet access services subject to divestiture remedies (Lattelecom/Microlink Latvia)
Raidla Lejins & Norcous (Riga)
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Cobalt Legal (Riga)
The operation On 30 May 2005 the Latvian Competition Council received from Lattelecom SIA a merger notification. In the merger notification Lattelecom SIA informed the Competition Council that on 16 May 2005 a Future Purchase Agreement was signed between Estonian company Elion Ettevotted AS, (...)

The Hungarian Competition Office establishes that a sale and purchase agreement on trademarks does not qualify as a concentration of undertakings (Maspex/Apenta)
lakatos, koves and partners
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lakatos, koves and partners
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Kinstellar
Upon the request of Maspex z.o.o. ("Maspex"), the Hungarian Competition Office ("HCO") initiated an investigation in order to assess whether the transfer of trademarks owned by Apenta Ásványvíz és Üdítõ Kft. ("Apenta"), a mineral water and soft drink producer, to Maspex would qualify as concentration (...)

The Bulgarian Commission for the Protection of Competition accepts brand divestiture remedies to prevent the creation of dominance in the whisky market (Pernod Ricard/Allied Domecq)
Boyanov & Co.
The operation The operation relates to the acquisition of sole control by Pernod Ricard S.A. France, over Allied Domecq Plc., UK. The notified transaction relates to the implementation of a Scheme of Arrangement under the UK Companies Act 1985, whereby Pernod Ricard has submitted an offer to (...)

The French Minister of Economics clears a merger in the markets of casinos with structural remedies (Partouche/Divonne)
University Paris II Panthéon‑Assas
The operation By a letter dated 28 September 2005, the French Minister of Economy, Finance, and Employment authorized the merger between two entertainment firms in the casinos sector: Groupe Partouche (“Partouche”) and Groupe de Divonne (“Divonne”). Partouche acquires Divonne (page 1). The market (...)

The UK Office of Fair Trading clears a merger in the bookmaking sector, subject to the divestment of licensed betting offices in four specific localities (Hilton Group/Jack Brown)
Added Value Capital Partners (AVCP)
The operation Hilton Group plc (“Hilton”) through Ladbroke Racing (Reading) Limited (“Ladbroke”) provides bookmaking services through 1,973 licensed betting offices (LBOs) in the United Kingdom and also operates an internet and telephone betting business. Jack Brown (Bookmaker) Limited (“Jack (...)

The Spanish Competition Authority clears in phase II a merger with remedies, including removal of exclusivity clauses and third party access (Igualmequisa & Adeslas/IMQ Seguros/Iquimesa Seguros)
PwC (Madrid)
The operation The operation involved the joint takeover by Igualmequisa and Adeslas of IMQ Seguros (a subsidiary of Igualmequisa) and Iquimesa Seguros (a subsidiary of Adeslas). Igualmequisa is a group of companies with operations in the health sector. It is controlled by IMQ Médicos, which in (...)

The UK Competition Commission cleared a merger in the market for the cinema exhibition of films, subject to the divestment of one of the acquired cinemas (Vue Entertainment/A3 Cinema)
Université de Genève
The operation On 29 April 2005, Vue Entertainment Holdings (UK) Limited (Vue) acquired sole control of A3 Cinema Limited (A3). The merger was cleared by the UK Competition Commission (CC) on 24 February 2006, subject to the divestment of a cinema in Basingstoke. Vue is a cinema exhibitor with (...)

The Latvian Competition Council clears a merger in the market of provision of cable TV services subject to remedies, including not to apply its selective pricing system in certain conditions (Baltkom)
Raidla Lejins & Norcous (Riga)
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Cobalt Legal (Riga)
The operation On 23 May 2005 the Latvian Competition Council received a merger notification from Baltkom TV SIA (Baltkom), where Baltkom informs the Competition Council of its intention to acquire certain assets - the electronic communications network (cable TV network) in Riga city (...)

The Austrian Cartel Court clears an acquisition in the market for emergency call and communication systems, conditional on a management buy-out remedy as well as various other commitments attached to the buy-out (Bridgepoint/Tunstall)
Université de Genève
The operation On 16 September 2005, the Austrian Cartel Court (OLG), following a referral from the Austrian Federal Competition Authority (BWB), cleared the acquisition of Tunstall Holding Limited (UK) by Bridgepoint Capital Group Limited (UK). Bridgepoint is the owner of Attendo AB, (...)

The UK Secretary of State accepted behavioural undertakings to address national security public interest concerns in relation to a merger in the technology and communications systems sector (Lockheed Martin/Insys)
Serle Court
The operation On 16 August 2005 Lockheed Martin UK (“LMUK”) (a subsidiary of Lockheed Martin Corporation) announced its proposal to acquire Insys, by way of a share purchase. Lockheed Martin Corporation is a US defence company active in the research, design, development, manufacture and (...)

The Turkish Competition Authority clears a merger in the GSM market subject to remedies, including limitation of the duration of the non-compete and confidentiality clauses (Alfa Telecom Turkey - Cukurova)
Esin
The operation Prior to the transaction, Cukurova Telecom Holding Ltd. (“Cukurova Telecom”), the joint venture company, was under the sole control of Cukurova Holding. Upon completion of the transaction, Cukurova Telecom has become a joint venture whose parent companies are being Alfa and (...)

The UK Competition Commission cleared the acquisition of 115 stores by one of the largest grocery retailers, subject to the divestment of 12 stores (Somerfield/Morrison)
Université de Genève
The operation On 2 September 2005, the UK Competition Commission (CC) approved the acquisition by Somerfield plc (Somerfield) of 103 stores from Wm Morrison Supermarkets plc (Morrison) instead of the proposed 115. The merger followed divestment requirements related to Morrison’s acquisition of (...)

Procedures

Applying for leniency before the EC Commission: Lateral effects in foreign and national jurisdictions (French)
Jones Day (Brussels)
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Jones Day (Brussels)
NB: Altough this article does not concern a specific EU member State, the editor has agreed to publish it in this e-Bulletin taking into account its strong interest for the implementation of the leniency programs in the EU (see on this subject, the review Concurrences, n° 3-2005, pp. 12-27) (...)

The Slovak NCA rules that proceedings against a dissolved company should not be stopped if there is a successor company (Zelezničná spoločnosť)
Norton Rose Fulbright (London)
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Rentsch Legal
On 9 September, the Council of the Antimonopoly Office of the Slovak Republic (the Office) repealed the first instance decision which discontinued the proceedings for alleged breach of Section 8(2) of the Slovak Competition Act and Article 82 EC. The case involved Železničná spoločnosť, a.s. (ZS), (...)

The Italian Parliament votes a provisions granting associations standing to recover damages or to bring action for restitution on behalf of consumers (Art. 140-bis, "Azione collettiva risarcitoria")
University of Turin
The much debated new article 140-bis of the Italian Consumer Code (“azione collettiva risarcitoria”), granting associations the standing to recover damages or to bring an action for restitution on behalf of consumers, would enter into force on 30 June 2009. This action relies on a bureaucratic (...)

Public sector

The French Competition Council restrictively applies the ECHR to competition law proceedings in a case of public tendering (“Strasbourg European Parliament works”)
DLA Piper (Paris)
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Cabinet Minard-Driss
In its decision n°05-D-51 dated 21 September 2005, the French Competition Council ("Conseil de la concurrence", hereafter the "Council") sanctioned anti-competitive agreements between public work firms. This decision concerned the construction of benches and offices for the European Parliament (...)

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