September 2011

Anticompetitive practices

The Romanian Competition Authority highlights the distinction between anticompetitive object and effect in the resale price maintenance case on the men’s cloth pants market (Producție Zarah Modern, Cargus Trans, Getin Com)
University of Technology (Tallinn)
On 30 September 2011 the Romanian Competition Authority (CC) established the existence of the resale price maintenance (RPM) clauses in the distribution contracts concluded by SC Producție Zarah Modern SRL(PZM) with its distributorsSC Cargus Trans SRLandSC Getin Com SRLon the market for (...)

The Slovak Antimonopoly Office imposes a fine for bid rigging in public procurement of office supplies (PAP-PEX)
Havel, Holasek & Partners (Brno)
Relevant facts On 28 September, 2011, the Slovak Antimonopoly Office’s Cartel Department (the “Office”) imposed a fine on both PAP-PEX and SLOVPAP Slovakia in the total amount of EUR 63,387 for colluding over bids on office supplies in relation to a public procurement of the Social Insurance (...)

The German Higher Regional Court of Düsseldorf upholds customer protection provision due to lack of an appreciable restriction of competition (Pet Food)
Van Bael & Bellis
On 28 September 2011, the Higher Regional Court of Düsseldorf (“the Court”) handed down a judgment on appeal regarding the validity of a section of a supply contract concluded between a manufacturer of pet food and a wholesaler. The relevant section of the contract, included, among other (...)

A US District Court fines a Japanese company $3.3 M for its conspiracy to restrain trade on US freight forwarding market (Vantec Corporation)
Simmons & Simmons (London)
Background & Proceedings In 2011, the US District Court for the District of Columbia found that Vantec Corporation had violated Section One of the Sherman Act, i.e. conspiracy to restrain trade (15 U.S.C § 1). Vantec Corporation is a Japanese company, with its main business activities (...)

The Italian Competition Authority fines three companies and a multi-firm agent for concerted practices in the healthcare insurance sector (Campanian insurance tenders)
Cleary Gottlieb Steen & Hamilton (Rome)
On September 28th, 2011 the Italian Competition Authority (hereinafter ICA) sanctioned with a total fine of EUR 13.583.515 three insurance companies and a multi-firm agent for concerted practices in the healthcare insurance sector. Object of the proceeding, whose investigation activity started (...)

A US Court of Appeals holds claims against a foreign price-fixing cartel in the potash industry either exempted under the Foreign Trade Antitrust Improvements Act or insufficient to state a cause of action under the Twombly/Iqbal pleading standards (Potash)
Cleveland-Marshall School of Law
Potash Potash Potash!!!!! En Banc Review Is in the Hizz-ouse, Y’all!* Something striking occurred in the Seventh Circuit this year. In two different, massive antitrust class actions, in the space of about nine months, panels of that court applied the Twombly-Iqbal pleading formula to reach (...)

The Italian Competition Authority fines on the basis of art. 2 L.287/90 four local associations for anticompetitive practices in the sector of services for thermic plants (Manutenzione impianti termici Comune di Potenza)
Cleary Gottlieb Steen & Hamilton (Rome)
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Macchi di Cellere Gangemi (Rome)
On September 22nd, 2011 the Italian Competition Authority (hereinafter, ICA) fined four local associations of companies, artisans and cooperatives for concerted practices aimed at fixing the economic conditions for the control and maintenance of thermic plants in the City of Potenza. The (...)

The Lithuanian Administrative Court annuls a decision of the national competition authority and emphasizes the importance of paying attention to the general aim of safeguarding the competition, rather than following a purely bureaucratic approach (Route Taxicabs)
Simmons & Simmons (London)
Background “Route Taxicabs”, a Business Association of Klaipeda (further on, “Route Taxicabs” Association) requested the Vilnius Regional Administrative Court (further on, Administrative Court) to annul the decision of the National Competition Authority to dismiss an investigation regarding (...)

The UK OFT issues recommendations designed to encourage increased competition and greater efficiency in the treatment of organic waste
European Commission
United Kingdom: Change needed to encourage Competition in Organic Waste Treatment* On 22 September 2011, following a market study, the OFT issued recommendations designed to encourage increased competition and greater efficiency in the treatment of organic waste. In its market study into the (...)

The German Competition Office imposes fines on manufacturers of wood based products (Manufacturers of wood-based products)
European Commission
Germany : Multi-Million Fines imposed on Manufacturers of Wood-based Products* On 20 September 2011, the Bundeskartellamt (BKartA) imposed fines totalling approximately € 42 000 000 on four manufacturers of chipboard, oriented strand boards and other wood-based products and on 10 individuals (...)

A US District Court grants motion to dismiss class action on an allegation of price fixing of rock salt (Erie County / Morton Salt)
Sheppard Mullin (Los Angeles)
Allegations of Conspiracy to Fix Prices in Ohio Rock Salt Duopoly Flunk “Plausibility” Analysis* Creation of duopolistic interdependence by misapplication of a state statute mandating preferential treatment for local producers is an implausible "slippery slope." Erie County v. Morton Salt, Inc., (...)

The European General Court restricts the liability of parent companies holding that the Commission can only rely on the presumption of liability if it includes an adequate statement of reasons in its decision (Koninklijke Grolsch)
Jones Day (Brussels)
The European General Court found on 15 September 2011 that the European Commission can only rely on the presumption of liability of a parent company for a wholly owned subsidiary if it included an adequate statement of reasons in its decision explaining that it indeed relied on that presumption (...)

The EU General Court annuls fine in the Dutch beer cartel case ruling that the evidence available to the EU Commission was not sufficient to establish the parent company liability for its subsidiary’s participation in the cartel (Grolsch)
Google (London)
The Dutch Beer Cases: The Value of Whistleblower Statements and the Cutback of Fines in Case of Unreasonably Long Commission Investigations* The General Court has rendered a series of judgments in the Dutch Beer Cartel case that involve a number of legal issues, including in Grolsch v. (...)

The EU General Court annuls fine imposed on parent company for its subsidiary’s participation in a beer industry cartel (Grolsch)
University of East Anglia - CCP
Article published on Centre for Competition Policy blog. Grolsch Cartel Fine Annulment: Should Parent Companies Pay for the Anti-Competitive Conduct of a Subsidiary?* The General Court has annulled a €36.6m fine imposed on Grolsch for the price fixing of beer in Holland. In its decision, the (...)

The Lisbon Commercial Court confirms the Competition Authority’s decision prohibiting a retail price maintenance agreement regarding equipment used in hospital pharmacies with a reduction of the fines (Hospitals’ Public Tenders)
European Commission
Portugal: The Lisbon Commercial Court confirms Competition Authority’s Decision on RPM affecting Hospitals’ Public Tenders* On 12 September 2011, the Lisbon Commercial Court (the Court) confirmed the Portugal Competition Authority’s (PCA) decision prohibiting a retail price maintenance (RPM) (...)

The ECJ Advocate General Kokott renders her opinion in the Czech gas insulated switchgear case holding that the principle ne bis in idem does not preclude NCAs from prosecuting the same cartel with respect to different territories or periods (Toshiba)
Université Catholique de Louvain
AG Kokott’s Opinion in Toshiba: framing the application of the ne bis in idem principle in EU competition law enforcement* One of the main concerns raised by the decentralization of EU competition law enforcement related to the risk of different competition authorities prosecuting and (...)

The Eastern District Court of New York holds that Chinese law did not compel the defendants in a cartel case to reach agreements on price and output (Vitamin C cartel)
Sheppard Mullin (San Francisco)
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US Federal Trade Commission (FTC)
In a recent, strongly worded federal antitrust decision, pleas for international comity by China’s nationalized vitamin industry and its regulatory overseer, China’s foremost trade industry, fell short in a showdown with U.S. domestic antitrust laws. The case indicates that foreign compulsion (...)

Unilateral Practices

The Lituanian Parliament modifies the article 3(11) of the law on competition which sets out the definition of the dominant position
European Commission
Lithuania: Extension of Scope of Presumption of Dominant Position in Competition Law* On 29 September 2011, Article 3(11) of the Law on Competition of the Republic of Lithuania which sets out the definition of the dominant position was modified. The amendment came into force on 1 November (...)

The Serbian Administrative Court upholds the infringement decision of the Competition Authority against a public company for abuse of dominance on the funeral services market (Gradska groblja Kragujevac)
University of Technology (Tallinn)
On 22 September 2011 the Administrative Court upheld the infringement decision of the Serbian Competition Authority (KZK) finding an abuse of dominant position in the form of tying by the public company JKP Gradska groblja Kragujevac (GGK). The Court ruled that the KZK has correctly found that (...)

The US Senate Committee on the Judiciary Subcommittee on Antitrust conducts antitrust hearings on abuse of dominance investigation in the web search industry (Google)
Rimm-Kaufman Group (Charlottesville, VA)
Google Antitrust Hearing: 5 Takeaways* While yesterday’s Senate antitrust hearing on Google practices may have been more about spectacle than action, it was an opportunity to gain insights into the mindset of Google and the government officials that may seek to intervene in their operations. (...)

The Spanish Competition Authority fines electricity distributors for abusing their dominant positions in the power distribution market by restricting competition in the neighboring market for the provision of electrical installation services (Unión Fenosa and Hidrocantábrico)
Hogan Lovells (Madrid)
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Linklaters (Madrid)
On 20 September 2011, the Council of the Spanish Competition Commission (hereinafter «the Council«, «the SCC«) imposed a combined fine of €2,313,000 on electricity distributors Unión Fenosa Distribución, S.A. («Unión Fenosa«) and Hidrocantábrico Distribución Eléctrica, S.A.U. («Hidrocantábrico«) for (...)

The Lithuanian Competition Council terminates investigation on the alleged abuse of a dominant position of Lithuanian Railways (Lietuvos gelezinkeliai)
Valiunas Ellex (Vilnius)
On 15 September 2011 the Competition Council of the Republic of Lithuania (hereinafter – the Competition Council) by its resolution No 1S-184 terminated the investigation concerning an alleged abuse of a dominant position of AB Lietuvos gelezinkeliai (Lithuanian Railways) (hereinafter – LG) by (...)

A Chinese District People’s court accepts a complaint brought by private companies against a public entity for abuse of administrative monopoly in the railway transport industry (Taiyuan Railway Bureau)
China Competition Bulletin
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China Competition Bulletin
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Institute of American Studies
Taiyuan Railway Bureau Sued for Monopoly* On 7 September 2011, the Shanxi Joint Transport Group Co., Ltd. brought an administrative lawsuit in the Taiyuan Xinghualing District People’s Court against the Taiyuan Railway Bureau for breaches of the AML and the Anti-Unfair Competition Law (AUCL). (...)

A Chinese District People’s court receives a complaint brought by private enterprises against a public entity for abuse of dominance in railway transport sector (Taiyuan Railway Bureau)
AnJie Law (Beijing)
Taiyuan Railway Bureau is Sued by Private Enterprises Alleged Monopoly* On September 7th, 2011, an antitrust litigation against Taiyuan Railway Bureau was brought to Taiyuan Xinghualing Court on the ground that Taiyuan Railway Bureau violated Anti-monopoly Law and Unfair Competition Law of PRC (...)

Mergers

The Turkish Competition Board authorizes a joint control acquisition in the sector of manufacture and sale of components and systems for automotive and motor vehicles (Mahle/Behr)
Erdem & Erdem
The Competition Board (the “Board”) authorized, under Act No. 4054 on the Protection of Competition numbered 4054 (the “Competition Act”) and the Communiqué No: 2010/4 Concerning the Mergers and Acquisitions Calling for the Authorization of the Competition Board (the “Merger Communiqué”), the (...)

The Competition Authority of Bosnia & Herzegovina interprets the rules on mandatory notification of concentrations, which reveals inconsistency between the Competition Act and the Merger Regulation
University of Technology (Tallinn)
On 29 September 2011 the Competition Authority of Bosnia & Herzegovina (KV) issued an opinion in relation to the application of merger notification thresholds in cases involving foreign companies with or without presence on the domestic market. The KV’s opinion was prompted by the request (...)

The Spanish Antitrust Authority adopts communications on termination of proceedings by commitments and on short-form notification of concentrations
European Commission
Spain: The CNC adopts Communications on Termination of Proceedings by Commitments and on Short-Form Notification of Concentrations* The Spanish antitrust authority, the Comisión Nacional de la Competencia (CNC) has approved two Communications on 28 September 2011. The first Communication on (...)

The French Competition Authority fines a media group for breach of merger commitments and requires unwinding or re-notifying merger (TPS / Canal Sat)
Jones Day (Brussels)
In an unprecedented decision, on September 20, 2011, the French Competition Authority (Autorité de la concurrence) withdrew the authorization granted in 2006 for Canal Plus to merge with TPS, on the ground that Canal Plus Group subsequently breached some of the conditions of the merger (...)

The French Competition Authority fines two media groups for violating merger remedies in the satellite TV sector (TPS / Canal Sat)
EDHEC (Nice)
Summary The merger between TPS and Canal Satellite, Vivendi Universal and Canal plus Group’s satellite television subsidiary, was cancelled and the companies had to pay a 30 million euro fine and re-submit their merger. Facts In 2006, Canal plus group and Vivendi Universal group decided to (...)

The Estonian Competition Authority prohibits a merger between two postal service providers on the basis of national merger regulation (Aktsiaselts Eesti Post / Express Post)
COBALT Legal
On 16 September 2011, the Estonian Competition Authority (ECA) prohibited merger between two postal service providers Aktsiaselts Eesti Post (Eesti Post) and AS Express Post (Express Post) in the second phase. First of all, it should be noted that Eesti Post is a state-owned near-monopoly (...)

Seven US States join US DoJ in suit to block the proposed combination of two of the four largest providers of mobile wireless telecommunications services (AT&T/T-Mobile)
Wolters Kluwer (Riverwoods)
Seven States Join U.S. in Suit to Block AT&T’s Acquisition of T-Mobile* The Attorneys General of California, Illinois, Massachusetts, New York, Ohio, Pennsylvania, and Washington have signed on to the U.S. Justice Department’s complaint challenging AT&T, Inc.’s proposed $39 billion (...)

The French Competition Authority clears a merger on the catering sector (Sodexo / Lenôtre)
French Competition Authority
Press Release published on the official website of the French Competition Authority. The Autorité de la concurrence clears the acquisition of Lenôtre by Sodexo*. The Autorité de la concurrence has examined the acquisition of sole control of Lenôtre by Sodexo and authorised the transaction in a (...)

The French Competition Authority clears a merger on the home furnishings and interior design retail sector (Cafom / Habitat)
French Competition Authority
Press Release published on the official website of the French Competition Authority. The Autorité de la concurrence clears the acquisition of sole control of Habitat by Cafom*. The Autorité de la concurrence has examined the acquisition of sole control of Habitat by Cafom and authorised the (...)

The US DOJ announces that it would condition its approval of a proposed merger in the radio advertising market on the divestiture of three radio stations in two overlap markets (Cumulus Media / Citadel Broadcasting)
Sheppard Mullin (San Francisco)
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Paul Hastings (Washington)
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Paul Hastings (Washington)
On September 8, 2011, the U.S. Department of Justice (“DOJ”) Antitrust Division announced that it would condition its approval of Cumulus Media Inc.’s proposed merger with Citadel Broadcasting on the divestiture of three radio stations in two overlap markets . In its court filings, the DOJ (...)

The Belgium Competition Council clears an acquisition in the audiovisual and advertising sector (W&W / Corelio / Sanoma / De Vijver Media)
Baker McKenzie (Brussels)
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Baker McKenzie (Brussels)
On 7 September 2011, the Competition Council cleared the acquisition by Waterman & Waterman Comm VA (W&W), Corelio NV (Corelio) and Sanoma Corporation (hereinafter Sanoma) of joint control over De Vijver Media (De Vijver Media), a financial holding company with participations in a group (...)

The Chinese MOFCOM issues guidelines on the assessment of mergers under the anti-monopoly law
Jones Day (Beijing)
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Gibson Dunn (Hong Kong)
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Jones Day (Beijing)
The Ministry of Commerce of the People’s Republic of China ("MOFCOM") has published its Interim Rules on the Assessment of the Effects of Concentrations of Undertakings on Competition ("Rules"), effective September 5, 2011. The Rules explain how MOFCOM will assess mergers or other (...)

The Spanish Competition Commission approves with commitments the concentration of the two main operators in transformation and wholesale rice (EBRO / DEOLEO)
Callol, Coca & Asociados
The merger consisting of the acquisition by EBRO FOODS, S.A. (EBRO) of DEOLEO, S.A. (DEOLEO) – formerly SOS COPRPORACION ALIMENTARIA, S.A. (SOS) - rice business assets leads to the concentration of the two main operators in transformation and wholesale rice, for its commercialization with (...)

The Polish Competition Authority conditionally approves a concentration in the cable TV market (UPC Polska/Aster)
Hogan Lovells (Warsaw)
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Hogan Lovells (Warsaw)
Background On 5th September 2011, the President of the Office for Competition and Consumers Protection (the «OCCP«) issued an administrative decision approving the acquisition of Aster by UPC Polska («UPC«). As a result of the merger UPC will achieve a substantial market position in the area of (...)

The French Competition Authority clears, subject to commitments, a merger in the retail grocery sector in Martinique (Bernard Hayot / Cora)
French Competition Authority
Press Release published on the official website of the French Competition Authority. The Autorité de la concurrence clears, subject to commitments, the acquisition of a Cora hypermarket by Groupe Bernard Hayot on Martinique (French West Indies)*. The Autorité de la concurrence is today (...)

The Chinese MOFCOM issues new interim provisions on the assessment of anticompetitive effects of mergers
Linklaters (Beijing)
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Linklaters (Shanghai)
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Linklaters (London)
On 2 September 2011, the PRC Ministry of Commerce (the “MOFCOM”) published on its website the Interim Provisions on Assessment of Competitive Impact of Concentrations of Business Operators (the “Interim Provisions”), which came into effect on 5 September 2011. The Interim Provisions elaborate on (...)

The Chinese MOFCOM finalizes new interim provisions on the assessment of anticompetitive effects of mergers
Allen & Overy (Beijing)
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Allen & Overy (Beijing)
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Allen & Overy (Shanghai)
This article has been selected for the business category, mergers section of the 2012 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. On 2 September 2011, China’s Ministry of Commerce (MOFCOM) published Provisional Rules on the Assessment of the (...)

The US DoJ conditions approval of a joint venture upon behavioral remedies, such as specific terms of licensing and management of video content, in the industries of online video distribution and video programming (Comcast and NBC Universal)
Crowell & Moring (Washington)
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Crowell & Moring (Washington)
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United Airlines
U.S. antitrust agencies, in a flurry of recent actions, have reinvigorated vertical merger enforcement, claiming competitive harm from what, in the past, would potentially have been viewed as efficiency-enhancing vertical integration. The Department of Justice (“DOJ”), in particular, has (...)

The US DoJ seeks conduct remedies prior to approving a joint venture in order to prevent exclusionary conduct in the markets for online video distribution and video programming (Comcast and NBC Universal)
American University’s Washington College of Law
The Federal Communication Commission’s recent decision to allow the transaction between Comcast and General Electric’s NBC Universal (NBCU) affiliate to proceed subject to conditions1 helped to fill a gap in the contemporary treatment of vertical mergers. The existence of this gap was (...)

State Aid

The EU General Court rules that the EU Commission failed its duty to act following a complaint by low cost airline against alleged State aid to Italian airlines (Ryanair)
Van Bael & Bellis (Brussels)
On 29 September 2011, the General Court handed down its judgment concerning complaints by Ryanair concerning alleged state aid to Italian airlines. The General Court found that the Commission had failed in its duty to act on the complaints. The case stems from letters sent by the low (...)

Procedures

The Irish Minister for Jobs, Enterprise and Innovation publishes a new competition bill to strengthen competition law enforcement ("The Competition (Amendment) Bill 2011")
University of East Anglia - CCP
Article published on Centre for Competition Policy blog. Will IMF Requirement that Ireland Strengthen Competition Law Sanctions Actually Make a Difference?* The Republic of Ireland is facing the most serious economic crisis in its history. In order to deal with its sovereign debt crisis, it (...)

The European Court of Human Rights confirms that the Italian antitrust fining regime is compatible with human rights (Menarini)
Simmons & Simmons (Milano)
On 27 September 2011 the European Court of Human Rights (ECHR or the Court) ruled the Italian system of antitrust sanctions to be compliant with the law of fundamental rights. Specifically, the ECHR deemed the Italian system, consisting of a decision by the Italian Competition Authority (ICA) (...)

The Croatian Competition Authority publishes the results of the 2010 sector inquiry on the market for milk and dairy products
University of Technology (Tallinn)
On 21 September 2011 the Croatian Competition Authority (AZTN) released the results of the sector inquiry on the market for milk and dairy products. The report is based on the data collected from 48 undertakings active on the market for purchasing raw milk from the producers and 14 undertakings (...)

The Chinese MOFCOM publishes final rules on the national security review of foreign investment in national companies
Jones Day (Beijing)
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Gibson Dunn (Hong Kong)
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Jones Day (Beijing)
China has published new rules to implement the national security review that will be conducted as part of the review of mergers and acquisitions by foreign investors and involving Chinese companies. These rules provide for review and potential rejection of acquisitions of Chinese companies by (...)

Regulatory

The French Competition Authority publishes two opinions concerning new entrants accessing passenger railway stations
French Competition Authority
Press Release published on the official website of the French Competition Authority. The Autorité de la concurrence publishes two opinions concerning new entrants accessing passenger railway stations. It invites public authorities to prepare for the next stage of the opening up to competition (...)

The Irish Government approves legislation to eliminate restrictions on family doctors wishing to treat public patients (General Medical Practitioners)
European Commission
Ireland: Government approves Legislation to eliminate Restrictions on Family Doctors wishing to treat Public Patients* On 14 September 2011, the Irish Government has approved the drafting of a Bill which will remove restrictions on Family Doctors (called General Medical Practitioners (GPs)) (...)

Public sector

The Italian Competition Authority imposes fines totalling € 13 000 000 for collusive behaviour in public procurement in heathcare services (Healthcare liability coverage)
European Commission
Italy: Insurance Companies fined for collusive Behaviour in Public Procurement in Healthcare Services in Campania* On 28 September 2011, the ICA decided to fine three insurance companies and a multifirm insurance agency representing the insurance companies in tendering selections for a (...)

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