September 2017

Anticompetitive practices

The EU Commission fines several truck manufacturers for cartel (Scania)
European Commission - DG COMP
Antitrust: Commission fines Scania €880 million for participating in trucks cartel* The European Commission has found that Scania broke EU antitrust rules. It colluded for 14 years with five other truck manufacturers on truck pricing and on passing on the costs of new technologies to meet (...)

The UK CMA annonces the launch of a market investigation into investment consultancy services and fiduciary management services
Morgan Lewis (London)
On 14 September 2017, the Competition and Markets Authority (CMA) announced that, following a reference from the Financial Conduct Authority (FCA), it was launching a market investigation into investment consultancy services and fiduciary management services to and by institutional investors (...)

The French Supreme Court refers a case on online platform sales ban back to the Paris Court of Appeal without waiting for an upcoming ruling of the EU Court of Justice on a similar case (Caudalie / eNova)
Van Bael & Bellis (Brussels)
On 13 September 2017, the French Supreme Court ordered the Paris Court of Appeal to rehear a case for failing to sufficiently substantiate its finding that an obligation in Caudalie’s selective distribution system constituted a probable restriction of competition by object. In the selective (...)

The EU General Court reduces the fine after re-hearing the bathroom fixtures and fittings cartel case (Laufen Austria)
Van Bael & Bellis (Brussels)
On 12 September 2017, the General Court (“GC”) handed down its judgment on an appeal lodged by Laufen Austria, a bathroom equipment manufacturer, against a Commission decision in connection with the bathroom fixtures and fittings cartel case, which was referred back to it for determination by the (...)

Unilateral Practices

The Cyprus Competition Authority sends a statement of objections to a chemical and consumer goods company suspected to have abused of its dominance (Henkel)
Commission for the Protection of Competition of the Republic of Cyprus
The Commission for the Protection of Competition announces that it has notified Statements of Objections to Henkel AG & Co KGaA and its subsidiary GPM Henkel Ltd jointly and severally regarding a prima facie infringement of Section 6(1)(b) of the Protection of Competition Laws of 2008 and (...)

The EU Court of Justice clarifies the concept of unfair price under article 102 TFEU (AKKA / LAA)
Covington & Burling (Brussels)
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Covington & Burling (Brussels)
Welcome clarifications by the EU Court on the concept of excessive pricing* On the 14 September, the Court of Justice of the European Union provided detailed guidance on the concept of excessive pricing under Article 102 TFEU, in response to questions posed by the Latvian Supreme Court. In (...)

The EU Court of Justice accepts an alternative to the United Brands test to establish excessive pricing (AKKA / LAA)
Desogus Law Office (Cagliari)
On replying to the preliminary questions referred by the Supreme Court of Latvia (SCL), in AKKA v LAA the CJEU has accepted a methodology other than the two-limb United Brands test to establish an excessive pricing practice. The CJEU also clarifies the criteria to set the amount of the fine (...)

Advocate General Mengozzi takes a new look at exhaustion of trademark rights and seems prepared to accept erosion of such rights (Schweppes)
Van Bael & Bellis
On 12 September 2017, Advocate General Mengozzi (“AG”) delivered an opinion in the Schweppes case in the context of a request for a preliminary ruling to the Court of Justice of the European Union (“ECJ”) from a Spanish Court. In particular, the AG proposed to develop the case-law on the exhaustion (...)

The EU Court of Justice modernizes abuse of dominance (Intel)
Cleary Gottlieb Steen & Hamilton (Brussels)
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Cleary Gottlieb Steen & Hamilton (Brussels)
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Cleary Gottlieb Steen & Hamilton (London)
(“CJEU”) set aside General Court’s 2014 Intel judgment, upholding a European Commission (the “Commission”) decision fining Intel €1.06 billion for abuse of dominance through exclusivity rebates . The CJEU held that the General Court had erred in failing to examine all of Intel’s arguments calling (...)

The EU Court of Justice quashes the 2014 judgment of the General Court that upheld a fine of €1.06 billion for an abuse of dominant position by implementing loyalty rebates based on exclusivity agreements (Intel)
Skadden, Arps, Slate, Meagher & Flom (Brussels)
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Skadden, Arps, Slate, Meagher & Flom (Brussels)
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Skadden, Arps, Slate, Meagher & Flom (Brussels)
On September 6, 2017 ,the Court of Justice of the European Union (CJEU) quashed the 2014 judgment of the General Court (GC) that upheld a fine of €1.06 billion ($1.5 billion) on Intel Corporation Inc. (Intel) for abusing a dominant market position by implementing loyalty rebates based on (...)

The EU Court of Justice refers a case back to the General Court for re-examination (Intel)
Norton Rose Fulbright (Brussels)
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Norton Rose Fulbright (London)
Major victory for Intel as CJEU sends case back to General Court for re-examination* On 6 September, the EU’s highest court, the Court of Justice (CJEU), released its long-awaited decision in the Intel case, in which the Commission imposed a fine of €1.06 billion – at the time, the largest fine (...)

The EU Court of justice revisits forty years of case law on when a dominant company’s rebate scheme may be abusive (Intel)
Baker McKenzie (Brussels)
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Baker McKenzie (London)
In its ruling on the European Commission’s 500 page Intel decision, in a crisp 150 paragraphs, the EU Court of Justice (the Court) revisited forty years of jurisprudence on when a dominant company’s rebate scheme may be abusive. Though no final decision for Intel, the case marks a potentially (...)

The EU Court of Justice annuls a General Court ruling that upheld the fine imposed by the Commission for an abuse of dominance (Intel)
Jones Day (Brussels)
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Jones Day (Brussels)
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Morgan Lewis (Frankfurt)
What happened? The European Court of Justice ("ECJ") set aside a General Court ruling that had upheld a €1.06 billion fine imposed by the European Commission on Intel for abusing its dominant position in the market for x86 central processing units ("CPUs"). Background In its 2009 decision, (...)

The EU Court of Justice endorses an effects-based assessment of rebates (Intel)
White & Case (Brussels)
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White & Case (Brussels)
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White & Case (Brussels)
On 6 September 2017, the Court of Justice of the European Union ("CJEU" or "Court") essentially held in Intel that the European Commission ("Commission") cannot consider rebates, and in particular loyalty rebates, as per se illegal. Rather, the Commission needs to show that a specific rebates (...)

The EU Court of Justice issues landmark judgment on legal treatment of fidelity rebates granted by dominant companies (Intel)
Van Bael & Bellis (Brussels)
On 6 September 2017, the Court of Justice of the European Union (“ECJ”) issued its long-awaited judgment in the Intel case (Case C-413/14 P), setting aside the General Court’s (“GC”) judgment. The GC must now re-assess the legality of the Commission’s decision in light of the ECJ’s ruling. Intel was (...)

Mergers

The EU Commission clears a merger, subject to remedies, in the vending services market (Pelican Rouge / Selecta)
European Commission - DG COMP
Mergers: Commission approves acquisition of Pelican Rouge by Selecta, subject to conditions* The European Commission has cleared under the EU Merger Regulation the proposed acquisition of vending services provider Pelican Rouge of the Netherlands by Selecta of Switzerland. The clearance is (...)

The Polish Competition Authority imposes a fine of more than EUR 78,000 on a consumer eggs producer for gun-jumping (Fermy Drobiu Woźniak)
WKB Wierciński Kwieciński Baehr (Warsaw)
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WKB Wierciński Kwieciński Baehr (Warsaw)
In its decision of 19 September 2017, the Polish Competition Authority (Prezes Urzędu Ochrony Konkurencji i Konsumentów, hereinafter referred to as the “PCA”) fined Fermy Drobiu “Woźniak” sp. z o.o. (hereinafter referred to as the “FDW”) the amount of PLN 339,000.00 (approx. EUR 78,000.00) for failure (...)

The EU Commission proposes a new regulation that would allow the Commission and Member States to adopt rules for screening foreign direct investment
Van Bael & Bellis (Brussels)
On 14 September 2017, the European Commission proposed a new regulation to allow the Commission and the Member States to adopt rules for screening foreign direct investment (“FDI”) in the EU that raises concerns on grounds of security or public order (the “Proposal”). The Proposal aims to (...)

The French Competition Authority opens an in-depth investigation concerning a merger in the online property advertising (Logic-Immo.com / SeLoger.com)
French Competition Authority (Paris)
The Autorité de la concurrence has begun an in-depth examination as part of the review of the take-over of Concept Multimédia (Logic-Immo.com) by the Axel Springer group (SeLoger.com)* The Axel Springer group, which is active mainly on the online property adverting market via SeLoger.com, (...)

The EU Court of Justice renders a judgement regarding the rules governing the notification of mergers resulting in the creation of joint ventures (Austria Asphalt)
Cleary Gottlieb Steen & Hamilton (Cologne)
On 7 September 2017, the European Court of Justice issued its preliminary ruling in Case C-248/16 Austria Asphalt. The judgment clarifies that a change from sole to joint control over an existing undertaking is a notifiable concentration under the Merger Regulation only if the resulting joint (...)

The EU Court of Justice clarifies the application of the EU merger control rules to joint ventures (Austria Asphalt)
McDermott Will & Emery (Düsseldorf)
European Court of Justice clarifies application of European Union merger control rules to joint ventures* On 7 September 2017, the European Court of Justice issued a decision (Decision) on the interpretation of the European Union Merger Regulation (EUMR). The Decision clarifies the conditions (...)

The EU Court of Justice decides EU merger control rules can only apply to joint control transactions if the resulting entity is a ‘full-function’ joint venture (Austria Asphalt)
Shearman & Sterling (London)
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Shearman & Sterling (London)
On September 7, 2017, the European Court of Justice (ECJ) decided that, where joint control is acquired over a new or existing undertaking (or parts of an undertaking), that transaction can only fall within the scope of the EU Merger Regulation (EUMR) where the resulting entity will be (...)

The EU Commission refers back to the French Competition Authority a merger in the waste management sector (La Poste / Suez groups)
French Competition Authority (Paris)
The European Commission has referred the review of the creation of a joint venture between the La Poste and Suez groups, in the waste management sector* The European Commission referred the review of the creation of a joint venture between the La Poste and Suez groups. The two companies (...)

State Aid

The EU Commission confirms that Ireland granted State Aid to a company (Apple)
Simmons & Simmons (Luxembourg)
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Simmons & Simmons (Luxembourg)
On 30 August 2016, the EU commission confirmed that in their view, Ireland granted illegal State Aid to Apple. Such State Aid is allegedly granted in the form of a selective tax treatment. The decision is the latest in the EU Commission’s moves to use State Aid principles in a direct tax (...)

The EU Court of Justice rules that Polish renewable energy support scheme does not involve state resources (ENEA)
Van Bael & Bellis (Brussels)
On 13 September 2017, the Court of Justice of the European Union ( “ECJ”) issued its judgment on a request for a preliminary ruling from the Polish Supreme Court regarding the qualification of a national renewable energy support scheme as state aid (Case C-329/15, ENEA S.A. v Prezes Urzędu (...)

Procedures

The Vietnam National Assembly publishes 5th draft of the new Competition Law
Baker McKenzie (Hô Chi Minh-Ville)
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Baker McKenzie (Hô Chi Minh-Ville)
On 15 September 2017, the 5th draft of the new Competition Law (the 5th Draft) was published on the National Assembly Office Portal for public review and comments. The 5th Draft is being reviewed by the Standing Committee of the National Assembly and is expected to be passed in May 2018. The (...)

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