Absolute territorial protection

Anticompetitive practices

The Swiss Federal Administrative Court upholds fines imposed by the Competition Commission to a Swiss toothpaste manufacturer and licensor and its Austrian distributor and licensee for prohibiting parallel imports from Austria to Switzerland (Gaba International)
Bourgeois Avocats
Background and Court decision Back in 2009, the Swiss Competition Commission (COMCO) hit Gaba International AG – an undertaking part of the Colgate-Palmolive Group and manufacturer of the toothpaste brands Elmex and Meridol – with a CHF 4.8 mio (about EUR 3.9 mio) fine for restricting passive (...)

The EU Commission is set to open an investigation that could outlaw exclusive territorial models of pay-TV licensing
Blackstone Chambers
Murphy, round 2: does exclusive territorial licensing of pay-TV breach EU competition law?* According to a report in the Financial Times on 24 November 2013, the European Commission is on the verge of commencing a formal investigation into potentially anti-competitive restrictions in pay-TV (...)

The Competition Authority of Bosnia & Herzegovina prosecutes the regional government for public procurement infringements that resulted in restriction of competition in the transports market (Centrotrans-Eurolines)
University of Technology (Tallinn)
On 18 April 2012 the Competition Authority of Bosnia and Herzegovina (KV) established that public procurement infringements by the Sarajevo cantonal Ministry of Education, Science and Youth (the Ministry) resulted in restriction of competition on the passenger transport market. The KV found (...)

The French Competition Authority fines three leading companies in dog and cat food sector (Nestlé, Mars, Colgate-Palmolive)
European Commission (Brussels)
France: The Autorité de la concurrence fines three leading Companies in Dog and Cat Food Sector * On 20 March 2012, the Autorité de la concurrence (the Autorité) fined the Nestlé, Mars Incorporated, Colgate-Palmolive Groups and their respective specialist subsidiaries Nestlé Purina Petcare France, (...)

The EU Court of Justice rejects the argument that the prohibition on the import, sale and use of foreign decoding devices was necessary to ensure compliance with the UK blackout rule (Football Association Premier League)
Den Haag, Asser Institute
Premier League fans in Europe worse off after Murphy judgment* When the European Court of Justice (CJ) delivered its judgment in joined cases FA Premier League v QC Leisure and others (C-403/08) and Karen Murphy v Media Protection Services (C-429/08) (Murphy), it was deemed a radical (...)

The European Court of Justice issues its preliminary ruling holding that restricting the sale of European foreign satellite decoder cards is “contrary to the freedom to provide services” (Football Association Premier League)
Max Findlay Associates
Little, large and not proven* The big story for British sports fans has been the recent ruling by the Court of Justice of the European Union (ECJ) in the FA Premier League / Karen Murphy case. Effectively, the ECJ has said that British viewers can buy live English Premier League football (...)

The European Court of Justice validates exclusive rights for broadcasting of sports events provided they do not grant absolute territorial exclusivity (Football Association Premier League)
Vogel & Vogel
The Football Association Premier League (FAPL), holder of the television broadcasting rights for the Premier League, the leading professional football league competition for football clubs in England, grants exclusive licences in respect of those broadcasting rights to one TV channel per (...)

The European Court of Justice renders its judgment on licensing of satellite broadcasting holding that national law blocking the importation of foreign decoders is contrary to freedom to provide services (Football Association Premier League)
Cleary Gottlieb Steen & Hamilton (Brussels)
The Court of Justice Speaks On Licensing Of Satellite Broadcasting* On October 4, the European Court of Justice rendered its judgment in Premier League v QC Leisure. For a discussion of the background to the case and the opinion of the Advocate General see here. The Court concludes that (...)

The ECJ Advocate General Kokott renders her opinion holding that the principle of exhaustion applies to the transmission of live football matches in the same way as to physical products (Football Association Premier League)
Cleary Gottlieb Steen & Hamilton (Brussels)
UK Pubs And Greek Decoders – The Implications Of The Premier League Case For The Dissemination Of Digital Content* The European Court of Justice is expected to render its judgment in Premier League v QC Leisure in the next few months. At the heart of the case, lies the question whether (...)

The ECJ Advocate General Kokott considers that territorial exclusivity agreements relating to the transmission of live football matches are contrary to European Union law (Football Association Premier League)
Wiggin (London)
I. Background The Football Association Premier League (“FAPL”) is the governing body of English Premier League football. Every year FAPL organises a competition in which 20 member clubs play against each other. FAPL is authorised by its members to license broadcasters to provide audiovisual (...)

The EU Commission declares that it won’t open formal proceedings against changed policies on restrictions imposed on the development of applications for smart phones operating system and cross-border warranties (Apple iPhone)
Ashurst (Milan)
European Commission closes preliminary investigations into Apple’s iPhone policies* On 25 September 2010, the European Commission declared that it would not open formal proceedings against Apple, following Apple’s iPhone change of policies on restrictions on the development of applications (or (...)

A French Court of Appeal makes a reference for a preliminary ruling to the ECJ on whether a general and absolute ban on Internet sales by approved distributors does constitute a “hardcore restriction” on competition by object within the meaning of Art. 81.1 EC (Pierre Fabre Dermo-Cosmétique)
Norton Rose Fulbright (Paris)
In a judgment dated 29 October 2009, the French Court of Appeal made a reference for a preliminary ruling under article 234 of the Treaty establishing the European Community (the “EC Treaty”), whereby the ECJ was asked to answer “the question whether a general and absolute ban on Internet sales to (...)

The UK Office of Fair Trading exercises its discretion not to refer the newspaper and magazine distribution industry to the Competition Commission despite competition concerns
DLA Piper
Summary The Office of Fair Trading (OFT) has decided not to refer the market for newspaper and magazine distribution in the UK to the Competition Commission (CC) for a market investigation (the MIR Decision). Background Following the revocation, in May 2005, of the Vertical Agreements (...)

The Austrian Supreme Court confirms a decision of the Cartel Court whereby cross-boarder RPM between a German publisher and an Austrian press distributor infringes Art 81.1 EU therefore preventing the exception provided in national legislation - excluding ban of RPM in the book / magazine sector - to apply (Burda / Pressegroßvertrieb)
Bpv Hügel (Vienna)
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Bpv Hügel (Brussels)
Case In 2004, Burda Publishing Group, Germany signed Pressegroßvertrieb as the exclusive Austrian distributor to retailers concerning Burda’s magazines. With a market share of 35%, Pressegroßvertrieb is only one of two competitors which provide distribution services including services such as (...)

The Italian Competition Authority inflicts fines in excess of € 13 million to several firms operating in lead recycling, and their consortium, for fixing market shares and foreclosing the creation of alternative consortia (COBAT)
Luigi Prosperetti & Partners
COBAT was formed to in 1998 as the Consortium for the gathering and processing of used lead-based batteries. Up to 2006, COBAT enjoyed a legal monopoly, and any company engaged in any activity concerned with the recycling of lead-based batteries (i.e.: smelters, producers or importers of (...)

The UK Office of Fair Trading releases the results of its sector inquiry on the market for newspaper and magazine distribution (Newspaper and magazine distribution in the UK)
DLA Piper
Summary On 22 October 2008 the Office of Fair Trading (OFT) produced the following three reports, as well as a background paper, as part of its enquiry into the distribution of newspapers and magazines in the United Kingdom. The reports were as follows : (a) a legal Opinion from the OFT on (...)

The German Federal Court of Justice finds that a recommendation of the Association of German lottery operators violates the prohibition of Art. 81 EC and s. 1 of the Act Against Restraints of Competition (Lottoblock)
University of East Anglia - CCP (Norwich)
Background The regulatory power for lottery games and gambling in Germany falls within the competency of the 16 Federal States (Bundesländer). Lotteries that play a systematic jackpot or where the jackpot exceeds the amount of one Million Euro are organised and operated by the State-controlled (...)

The Greek Competition Authority fines dairy producers and supermarkets for price-fixing infringement (Vivartia, Megval, Fage, Olympos and Rodopi)
Van Bael & Bellis (Brussels)
On 19 December 2007, the Greek Competition Authority adopted a decision concerning a price-fixing infringement committed by the major dairy producers (Vivartia, Megval, Fage, Olympos and Rodopi) and the major supermarket chains (AB Vassilopoulos, Sklavenitis, Afoi Veropouli, Carrefour, (...)

The Bulgarian Supreme Administrative Court quashes an NCA decision penalising agreements thwarting parallel imports of premium branded beverages (Diageo Brands)
Kinstellar (Sofia)
The first two sections of the article are derived from another article by the same author concerning the NCA decision in the case ; see Dessislava Fessenko, The Bulgarian Commission for Protection of Competition fined foreign-based suppliers for thwarting parallel imports of premium branded (...)

The French Competition Council fines an exclusivity purchase clause contained in a selective distribution agreement on the basis of both Art. 81.1 EC and French provisions (NGK Spark Plugs)
White & Case (Paris)
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French Competition Authority (Paris)
In its decision issued on 21 July 2006, the French Competition Council fined NGK Spark Plugs France (hereinafter “NGK France”), a French subsidiary of NGK Japan, active in the French market for spark plugs for two-wheel vehicles, for breach of both article 81 of the EC treaty and its French (...)

A Dutch Court of First Instance declares an exclusive distribution agreement on the market of ballast materials for the construction of railways void according to the Dutch Competition Act (Rotim/Ballast)
European Commission - DG HR
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Dutch Ministry of Security and Justice
Rotim is a Dutch company importing, selling and distributing ballast materials for railways. Basalt is a company established in Germany which produces ballast materials. In 1983, Rotim concluded an agreement with Basalt, the so-called “Liefervertrag’, according to which Rotim had the exclusive (...)

The Bulgarian Commission for Protection of Competition fines foreign-based suppliers for thwarting parallel imports of premium branded beverages (BG IN / Diageo Brands)
Kinstellar (Sofia)
By Decision n° 136 of 22 June 2006 (the “CPC decision”), the Bulgarian Commission for Protection of Competition (the “CPC”) fined three foreign-based beverage suppliers for preventing parallel imports of premium branded alcohols into Bulgaria. The CPC decision is noteworthy for introducing the (...)

The UK Office of Fair Trading issues a draft opinion indicating that exclusive newspaper distribution arrangements granting absolute territorial protection are compatible with UK and EC competition law ("Distribution arrangements between newspaper and magazine publishers and wholesalers")
Freshfields Bruckhaus Deringer (London)
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King’s College (London)
In order to ensure consistency with the EC regime, the UK system for notification of agreements under the Competition Act 1998 (the CA) was abolished on 1 May 2004. The OFT does not therefore accept notifications for decision or guidance under the Act. The OFT, however, continues to offer a (...)

The European Commission announces the closure of their investigation into the supply relationship between Russian gas producer and Italian wholesaler (Gazprom / ENI)
European Commission - DG COMP (Brussels)
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European Commission - DG COMP (Brussels)
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European Commission - DG COMP (Brussels)
"The territorial restrictions case in the gas sector: a state of play"* 1. Introduction On 6 October 2003, the Commission services announced the closure of their investigation into the supply relationship between Russian gas producer Gazprom and Italian wholesaler ENI. Just as other cases (...)

The European Commission investigates into the gas supply contracts concluded by Algerian state-owned gas company and its main European customers (Sonatrach)
European Commission - DG COMP (Brussels)
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European Commission - DG COMP (Brussels)
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European Commission - DG COMP (Brussels)
"The territorial restrictions case in the gas sector: a state of play"* 1. Introduction On 6 October 2003, the Commission services announced the closure of their investigation into the supply relationship between Russian gas producer Gazprom and Italian wholesaler ENI. Just as other cases (...)

The European Commission settles its investigation into territorial sales restrictions with Nigerian gas company (NLNG)
European Commission - DG COMP (Brussels)
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European Commission - DG COMP (Brussels)
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European Commission - DG COMP (Brussels)
"The territorial restrictions case in the gas sector: a state of play"* 1. Introduction On 6 October 2003, the Commission services announced the closure of their investigation into the supply relationship between Russian gas producer Gazprom and Italian wholesaler ENI. Just as other cases (...)

The European Commission fines fifth largest manufacturer of construction and earthmoving machines for its restrictive distribution agreements in several Member States (JCB Service)
European Commission - DG COMP (Brussels)
"Commission fines JCB Service for its restrictive distribution agreements in several Member States"* On 21 December 2000, the Commission adopted a decision finding that JCB Service, the UK-based parent company of the JC Bamford Group, infringes Article 81 of the EC Treaty and imposed on it a (...)

The European Commission persuades leading manufacturer of coffee machines to implement an international guarantee for its products addressing the issue of territorial restrictions (Saeco)
European Commission - DG JUST
"The Commission persuades Saeco to implement an international guarantee for its products and closes the complaint file"* The Commission has addressed the problem of territorial restrictions of guarantees offered by manufacturers on many occasions and has always insisted that, where a (...)

Dominance

The Taiwan Fair Trade Commission fines the leading taxi automobile supplier for implementing a territorial-restriction policy through sale subsidies (Toyota)
Chung Yuan Christian University
Introduction In March 2012, the Taiwan Fair Trade Commission (TFTC) imposed a NT$3,000,000 fine on Toyota, the leading taxi automobile supplier in Taiwan, for limiting the sales of its Taiwanese dealers to the assigned "areas of responsibility" (AOR). This case infused new elements into the (...)

The Italian Competition Authority fines a dominant undertaking for hindering a public tender procedure for the selection of a new provider of waste management services (Messinambiente/ATO ME3)
Desogus Law Office (Cagliari)
By the decision made on 14 March 2012 the Italian Competition Authority (ICA) has fined Messinambiente for abusing its dominant position in the market for waste management services. Messinambiente infringed competition law because it failed to supply a set of data requested by a public (...)

The EU Commission declares that it would not open formal proceedings following the change of policies on restrictions on the development of apps for smartphone operating system and cross-border warranties (Apple’s iPhone)
Ashurst (Milan)
European Commission closes preliminary investigations into Apple’s iPhone policies* On 25 September 2010, the European Commission declared that it would not open formal proceedings against Apple, following Apple’s iPhone change of policies on restrictions on the development of applications (or (...)

Procedures

The Swiss Competition Commission adopts a new communication on vertical agreements
Lenz & Staehelin (Geneva)
I. Introduction 1. On July 2nd, 2007, the Swiss Competition Commission (the “ComCo”) adopted a revised communication on the assessment of vertical agreements (the “Revised Communication on Vertical Agreements” or “Revised Communication”), which replaces the previous communication of February 18th, (...)

The European Court of Justice rules that the Greek Competition Authority is not a “court or tribunal” in the meaning of Art. 234 EC and therefore can not apply for an ECJ preliminary ruling (Syfait / GlaxoSmithKline)
White & Case (Brussels)
On 31 May 2005 the European Court of Justice (ECJ) delivered its judgment in Case C-53/03, Syfait and others v. GlaxoSmithKline AEVE and GlaxoSmithKline plc (“Syfait”), which raises the question of whether a dominant pharmaceutical undertaking is under a duty to supply unlimited quantities of (...)

The Brussels Commercial Court finds an exclusive distribution agreement contrary to Art. 81 EC but declined the claim for damages (APT-B/Lupac)
Smartflats
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Liège University - IEJE
The facts APT-B is a Belgian company which business consisted in repairing computer hard drives. It entered into an exclusive distribution agreement with LUPAC. On 11 December 1987, APT-B unilaterally terminated the said contract on the ground of alleged contractual failures and claimed for (...)

A Belgium Court considers a copyright exclusivity clause as pro-competitive and awards damages for the breach of the clause by videotapes sellers (GPFI/DGD - VRP)
Smartflats
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Liège University - IEJE
Background The proceedings in that case were initiated by GPFI, Belga Film, Cinélibre, la Médiathèque de la Communauté française de Belgique and Super Video Production respectively copyright holder and licensees of the movie “Un homme à ma taille”. The complainants sued DGD and VRP, two companies (...)

Regulations

The European Commission reaches an agreement with the government of Algeria on territorial restrictions and alternative clauses in gas supply contracts
Prometheus Public Affairs
"Territorial restrictions and profit sharing mechanisms in the gas sector: the Algerian case"* I. Introduction With the recent conclusion of the territorial restrictions case relating to the import of Algerian gas into Europe, the Commission successfully closed all previously pending cases on (...)

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