Utilities & Access to facilities

Anticompetitive practices

The Australian Competition and Consumer Authority grants authorisation for a joint tender for the supply of organic waste processing services (Metropolitan Melbourne Waste Management Group)
Australian Competition and Consumer Commission
ACCC grants authorisation to Melbourne councils for joint organic waste tender* The Australian Competition and Consumer Commission has granted authorisation for Metropolitan Melbourne Waste Management Group and eight metropolitan Melbourne councils to jointly tender and enter into contracts (...)

The South African Independent Communications Authority requests investigation into possible restrictive horizontal practices between two broadcasters (SABC / MultiChoice)
Primerio
Television antitrust saga continues, MultiChoice in the cross-hairs again* Interest group seeks antitrust investigation in free-to-air channels According to a press release by the Independent Communications Authority of South Africa (ICASA), the organisation proposed last on 4 April 2014 a (...)

The Australian Federal Court finds restrictive agreements preventing a competitor from entering the market by obtaining direct access to a source of flyash (Cement Australia)
Australian Competition and Consumer Commission
Federal Court declares anticompetitive conduct by Cement Australia* The Federal Court in Brisbane has made declarations in the ACCC v Cement Australia Pty Ltd & Ors matter, finding numerous contraventions of section 45 of the then Trade Practices Act 1974, now the Competition and Consumer (...)

The Australian Competition and Consumer Commission grants interim authorisation for collective negotiations between coal producers (Tanna Coal Export Terminal Producers / GPC)
Australian Competition and Consumer Commission
Coal producers granted interim authorisation for collective negotiations* The Australian Competition and Consumer Commission has granted interim authorisation for the RG Tanna Coal Export Terminal Producers (the applicants) to collectively negotiate with Gladstone Ports Corporation (GPC). The (...)

The Australian Competition and Consumer Commission proposes to grant authorisation to eight regional councils to enable them to jointly tender for waste collection services, and recyclables and organic waste processing services (New South Wales)
Australian Competition and Consumer Commission
ACCC proposes to grant authorisation to eight regional councils in NSW for joint tender for waste services* The Australian Competition and Consumer Commission has issued a draft determination proposing to grant authorisation to eight regional councils in NSW to enable them to jointly tender (...)

The Spanish Competition Commission fines a company group in the gas sector for hindering access to natural gas supply (Gas Natural Group)
Callol, Coca & Asociados (Madrid)
On 2 December 2009 the Investigation Direction of NCC opened a formal proceeding against Gas Natural due to possible anticompetitive practices consisting of hindering access to the natural gas supply market by refusing to process suppliers’ change requests made trough sound recordings. The (...)

The French Competition Authority fines 52.7 million euros for 10-years cartel (Road signs cartel)
Commissariat a l’energie atomique et aux energies alternatives (CEA)
On 22 December 2010, the Autorité de la Concurrence fined 8 firms in the Road Sign sector € 52,712,000 for agreeing on prices and sharing markets for permanent and temporary metal road signs between 1997 and 2006. Another two firms were fined € 2,229,000 for the abuse of a dominant position in the (...)

The German Federal Court of Justice on the basis of Art. 102 TFEU decides on a dominant position resulting from the upstream possibility to restrict downstream competition (Reisestellenkarte)
Gleiss Lutz (Munich)
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Milbank, Tweed, Hadley & McCloy (Munich)
On 3 March 2009, the German Federal Court of Justice reversed the judgement of the Higher Regional Court of Düsseldorf and remitted the case back for further proceedings. The question at stake was whether an undertaking could be regarded as dominant according to Art. 102 TFEU if due to its (...)

The French Competition Council accepts commitments aiming at providing access to a computer program in the press distribution sector (NMPP)
Moskvina Law, PLLC
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Darrois Villey Maillot Brochier
Background On 8 August 2003, Messageries Lyonnaises de Presse (MLP) filed a complaint with the French Competition Council (Council) regarding anticompetitive conduct of NMPP and SAEM-TP. The present decision addresses only NMPP’s alleged attempt to evict MLP from the market by refusing to grant (...)

The UK High Court holds abusive a threat to refuse to supply pre-race data constituting an essential facility (Attheraces v. The British Horseracing Board)
Reckitt Benckiser Group
Background The British Horseracing Board (“BHB”) plays a central role in organising British horseracing. It maintains a large database which includes detailed “pre-race data” regarding forthcoming fixtures. Attheraces (“ATR”) obtained such pre-race data from BHB (via an intermediary) and (...)

The German Competition Authority examines in formal proceedings whether a contract system for acquiring waste services is compatible with competition law (Der Grüne Punkt Duales System)
German Competition Authority (Bonn)
Bundeskartellamt examines whether DSD is compatible with competition law* The Bundeskartellamt will examine in formal proceedings whether the contract system of “Der Grüne Punkt – Duales System Deutschland AG” (DSD, “The Green Dot”) is compatible with the Act Against Restraints of Competition (ARC). (...)

The European Commission clears a joint venture arrangement between nine leading European gas companies for the construction and operation of a UK Belgium subsea gas interconnection (Interconnector)
European Commission - DG COMP (Brussels)
"Joint venture arrangement"* 0n 17 May 1995 the Commission issued a comfort letter to clear a joint venture arrangement between nine leading European gas companies for the construction and operation of a UK Belgium subsea gas interconnection, in particular a high pressure gas pipeline which (...)

Dominance

The UK Competition Appeal Tribunal dismisses the claim for exemplary damages against a water management company (Albion Water / Dŵr Cymru Cyfyngedig)
University of Dundee
Exemplary Damages in Competition Litigation* Much ink has been spilt following 2 Travel v. Cardiff Bus and Albion Water v. Dŵr Cymru Cyfyngedig on the subject of competition litigation in Europe. An axiom with varying justification is that European competition litigation must not embrace (...)

The EU Commission announces the finalization of preliminary investigation into E5 concerning the standardization process for future mobile communications services and the likelihood of competition foreclosure
DLA Piper Weiss-Tessbach (Vienna)
European Commission closes preliminary investigation into E5* On 7 March 2013 the European Commission announced that it had closed its preliminary investigation into E5, i.e. Europe’s five leading telecom operators (Deutsche Telekom, France Telecom, Telefonica, Vodafone and Telecom Italia), (...)

The Italian Competition Authority fines the refusal to share with competitors information essential for renewal of marketing authorization (Bayer Cropscience)
European Commission (Brussels)
Italy: The ICA fines Refusal to share with Competitors Information essential for Renewal of Marketing Authorisation* On 28 June 2011, the Italian Competition Authority (ICA) sanctioned Bayer Cropscience S.r.l. together with Bayer Cropscience AG for a violation of Article 102 TFEU and imposed a (...)

The French Competition Authority issues a decision making compulsory commitments made by two companies to resolve competition concerns in the household plastic packaging waste treatment (Eco-Emballages & Valorplast)
French Competition Authority (Paris)
Press Release published on the official website of the French Competition Authority. Eco-Emballages and Valorplast commit to greater neutrality vis-à-vis local and regional administrations in order to ensure full competition between buyers.* Following a referral by DKT International, the (...)

The Czech Supreme Administrative Court confirms fine against a regional bus company for abuse of dominant position against its competitor (CSAD Liberec - STUDENT AGENCY)
Weil, Gotshal & Manges (Prague)
On 26 April 2010 the Supreme Administrative Court rejected cassation appeal against the judgment of Regional Court in Brno which rejected judicial review claim lodged by CSAD Liberec (a regional bus company) against decision of the Czech Office for Protection of Competition (“Office”) which (...)

The Macedonian Competition Authority defines the waste depot as an essential facility on the market for waste disposal (Komunalna Higiena / Eko Club)
University of Technology (Tallinn)
On 18 December 2009 the Macedonian Competition Authority (KZK) found an abuse of dominant position on the market for waste disposal on the territory of Skopje municipality committed by the public undertaking Komunalna Higiena (KH). KH was the sole undertaking providing waste disposal services (...)

A German Court decides on the interpretation of the provision in German competition law concerning essential facilities (Hafa)
Gleiss Lutz (Munich)
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Milbank, Tweed, Hadley & McCloy (Munich)
On 3 May 2007, the German Hanseatic Higher Regional Court of Bremen issued a decision on several questions concerning denial of access to essential facilities. The case concerned the question whether the operator of an exhibition centre was a dominant undertaking in charge of an infrastructure (...)

The Belgian Competition Council orders an ICT company to disclose proprietary information over its electronic network (CRM/Portima)
University of South Australia
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Unibet (London)
I. Parties Portima is an ICT company which provides electronic network and software services to insurance companies and brokers. Computer Ressource management (“CRM”) is a rival company which develops secured information exchange softwares for insurance companies and brokers. II. Facts (...)

The UK Court of Appeal overturns the High Court’s finding that British Horseracing Board has abused its dominant position by charging excessive and discriminatory prices (Attheraces v. BHB)
Hogan Lovells
England and Wales Court of Appeal (Civil Division), 2 February 2007, Attheraces Ltd and Attheraces (UK) ltd.v. The British Horseracing Board Ltd. And BHB Enterprises PLC, Case n° A3/2006/0126), [2007] EWCA Civ 38 On 2 February 2007, the Court of Appeal handed down a judgment upholding the (...)

The UK Competition Appeal Tribunal considers the appropriate tests to apply in an interim decision regarding abuse of dominant position in pricing access to a water distribution channel in the context of the regulated UK water industry (Albion Water)
Paul Hastings (London)
The case commenced in 2001 and the instant decision relates to an appeal by an inset water undertaking (i.e. a local retailer of water services), Albion Water Limited (“Albion”) against a decision of the Director General of Water Services (the “Director”). The decision was to the effect that a (...)

The Czech Office for the Protection of Competition confirms the abuse of dominant position by the operator of a municipal cemetery by refusing to grant access to a funeral chapel (TSP/PSM)
Government of the Czech Republic
By a decision rendered on 13 December, 2005, the President of the Office has confirmed a first instance decision according to which Technické služby Prostejov (“TSP”), a city-owned company charged inter alia with the operation and maintenance of the municipal cemetery in the city of Prostejov, has (...)

The Polish Competition Authority holds that the practice of the public coal company aiming to prevent intermediaries’ access to final customers is an abuse of dominant position (Kompania Weglowa)
French National Research Agency (ANR)
The decision at hand, rendered on December 12, 2005, by the President of the Office of Competition and Consumer Protection (hereafter, “OCCP President” or “President of the Office”) concerns practices of Kompania Weglowa S.A., the biggest coal company in the European Union (hereafter, the “Public (...)

The Austrian Supreme Court finds, on the basis of the essential facilities doctrine, that a distributor abused its dominant position on the market for film distribution by refusing to supply competitors (Constantin-Film)
Reidlinger Schatzmann Rechtsanwälte
,
Bpv Hügel (Vienna)
This case relates to the treatment of refusals to supply under Sec. 35 of the Austrian Cartel Act, the Austrian-law equivalent of Article 82 of the EC-Treaty. The decision of the Austrian Supreme Court, acting as Appellate Cartel, reveals a rather generous application of the refusal to (...)

Dutch competition authorities and judges disagree on the application of the essential facility ECJ case law on imposing on the television broadcaster the obligation to license to a newspaper its TV programme (NOS/Telegraaf)
European Commission - DG HR
The Dutch national competition authority (hereafter NCA) had imposed on NOS, a Dutch national television broadcaster, the obligation to license to the Telegraaf, a national newspaper, the weekly TV programme listing at a reasonable price. The Telegraaf intended to add to its Saturday edition a (...)

The German Federal Supreme Court facilitates claim of competitors for a compulsory license by widening the ECJ Magill and IMS case law (Standard - Spundfass)
White & Case (Hambourg)
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Metro (Dusseldorf)
On 13 July 2004 the German Federal Supreme Court delivered a remarkable judgment on the prerequisites of a claim for the granting of a compulsory patent license under antitrust law. According to this judgment, the owner of a patent may be obliged to grant a license to competitors for products (...)

The European Commission closes its investigation on long-term supply agreements in the context of gas market liberalization (Gas Natural)
European Commission - DG GROW
"Long-term supply agreements in the context of gas market liberalisation: Commission closes investigation of Gas Natural"* Introduction On 27 March 2000 the Commission announced its decision to close its investigation concerning the long-term gas supply agreement entered into by the Spanish (...)

Mergers

The Australian Competition and Consumer Authority does not oppose the proposed acquisition on the market for ownership or operation of tollroads (Transurban / Queensland Motorways)
Australian Competition and Consumer Commission
ACCC to not oppose Transurban Consortium’s proposed acquisition of the tollroad assets of Queensland Motorways Group* The Australian Competition and Consumer Commission will not oppose the proposed acquisition by the Transurban Consortium (including Transurban Group) of the tollroad and (...)

The Spanish Competition Authority clears in phase II a merger in the health insurance services sector subject to removal of exclusivity clauses and third party access (Adeslas/Global Consulting/Lince)
PwC (Madrid)
The operation The operation involved the acquisition of joint control of Lince Servicios (and its subsidiaries) by Adeslas and Global Consulting. Lince Servicios was active in the provision of healthcare and health insurance services in the province of Ciudad Real. Before the transaction, (...)

The Hungarian Competition Authority clears a merger in the co-location services sector subject to remedies including separate operation, non-discrimination provisions and access obligations (Dataplex)
lakatos, koves and partners
The operation Dataplex is the most significant provider (with possessing approximately 50 per cent of the shares of the free area capacity) of the infocommunication outsourcing services (such as setting up the infrastructure, data storage services, ensuring the continuous course of business (...)

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 Czech NCA clears a merger in the long-distance heat supplies sector, subject to granting access to the infrastructure and temporary maintenance of supply level (Dalkia/ZTO)
Clifford Chance
The operation On the basis of the share purchase agreement concluded between Dalkia Morava, a.s. ("Dalkia") as a buyer and Ostrava municipality as a seller, Dalkia acquired 95% of shares in Zásobování teplem Ostrava, a.s. ("ZTO"), a stake enabling Dalkia to exercise an exclusive control over the (...)

The European Commission clears, subject to remedies, the take over of a Belgian oil company by French oil group (Total/Petrofina)
European Commission - DG TRADE
,
European Commission - DG TRADE
"Mergers: Recent developments and important decisions"* The Commission cleared, subject to undertakings by the parties, the take over of the Belgian Oil Company PetroFinaby Total.The operation raised competition concerns in the market for non-retail sales of fuels (i.e., gasoline, diesel, (...)

The European Commission approves a merger between two French companies creating France’s largest industrial groups, notably active in the utility sector (Lyonnaise-des-Eaux/Suez)
European Commission - DG COMP (Brussels)
"Merger : Summary of the most important recent developments"* In May 1997, the French groups Lyonnaise des Eaux and Compagnie de Suez proposed to merge their activities into a new entity, which becomes one of France’s largest industrial groups, notably active in the utility sector. After (...)

State Aids

The EU Commission considers the aid for the implementation of an urban development project for schools in the region of Attica to be compatible with the internal market based on Article 107(3)(c) TFEU (JESSICA)
College of Europe (Bruges)
A JESSICA-Funded Public-Private Partnership* Main points Public funding of a public-private partnership for the construction and maintenance of public schools may still involve State Aid. State Aid may have an incentive effect even when it is granted to a project that has already started. (...)

Procedures

The Finnish Competition Authority investigates on the district heating sector to understand whether prices applied by involved companies are abusive
European Commission (Brussels)
Finland: Study concerning the District Heating Sector* On 1 March 2011, the Finnish Competition Authority (FCA) finished the first stage of its investigations concerning the district heating sector. The aim of the study is to form an opinion of whether the pricing of the companies involved (...)

The Polish Act on creation and operation of large surface retail facilities deals with land use restriction as a barrier to entry in the retail distribution markets (Act of 11 May 2007)
Polish Competition Authority (Warsaw)
,
Bydgoszcz University of Technology and Life Sciences (UOKIK)
Introduction 1. What can and cannot be done with land or how it can be used is governed by land use restriction. The present study relates to a type of such limitation namely the act on large surface retail stores. It introduces a limitation in creating new large surface retail facilities, (...)

Regulations

A German Higher Regional Court rejects the appeal filed by the supplier of water services confirming the applicability of competition law (BWB)
German Competition Authority (Bonn)
Düsseldorf Higher Regional Court confirms Bundeskartellamt decision on reduction of Berlin water prices* On 27 February 2014 the Düsseldorf Higher Regional Court has rejected the appeal filed by Berliner Wasserbetriebe (BWB) against the Bundeskartellamt’s decision of 4 June 2012. In this decision (...)

The New Zealand Commerce Commission invites views on the revision of the input methodologies for the cost of capital that apply to electricity lines services, gas pipeline services and specified airport services
New Zealand Commerce Commission
Press releases published on New Zealand Commerce Commission Commission seeks views on cost of capital input methodologies* The Commerce Commission is now inviting views on whether it should consider reviewing or amending the input methodologies for the cost of capital that apply to (...)

The Australian Competition and Consumer Commission does not object against price increase for monopoly letter services (Australia Post)
Australian Competition and Consumer Commission
ACCC does not object to postage price increase by Australia Post* The Australian Competition and Consumer Commission has decided to not object to Australia Post’s proposal to increase the prices of ordinary letter services, including the basic postage rate (BPR) from 60 cents to 70 cents. (...)

The Netherlands ACM allows blocking certain internet services on board of trains of Dutch railway company as an exception from the net neutrality rule (T-Mobile)
Netherlands Authority for Consumers & Markets (The Hague)
Telecom company T-Mobile is allowed to restrict free internet access on board trains* The Netherlands Authority for Consumer and Markets (ACM) has concluded that Dutch telecom company T-Mobile is allowed to block certain services such as YouTube and Spotify on the free Wi-Fi-network on board (...)

The French Competition Authority issues three opinions on the analysis of wholesale fixed and mobile voice call and SMS termination markets (ARCEP)
French Competition Authority (Paris)
Press release published on the official website of the French Competition Authority. The Autorité de la concurrence issues three opinions to Arcep on the analysis of wholesale call termination markets for the 2014-2016 period and calls for an accelerated and generalised application of the (...)

The UK Energy Regulator closes investigation of an electricity producer over a potential breach of the consumer protection from the unfair trading regulations 2008 (EDF Energy)
Ofgem investigated a fault with the operation of EDF‘s Interactive Voice Response (“IVR”) telephone system and its interface with EDF‘s billing system which resulted in some customers who provided their own meter readings through the IVR system being overcharged or undercharged. Background EDF‘s (...)

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 (...)

The European Commission publishes results of its sector inquiry into gas and electricity addressing the issue of effective unbundling of energy transmission networks
FTI Consulting (Brussels)
,
European Commission - DG COMP (Brussels)
,
European Commission - DG SANCO
"Effective unbundling of energy transmission networks: lessons from the Energy Sector Inquiry"* I. Introduction During the late 1990s, the European Union decided to fundamentally change the basis for the provision of electricity and gas from a monopolistic to a competitive market framework. (...)

The European Commission rules on access to gas pipelines (Marathon)
European Commission - DG COMP (Brussels)
,
European Commission - DG COMP (Brussels)
,
European Commission - DG GROW
"Access to gas pipelines: lessons learnt from the Marathon case"* 1. Introduction Access to gas pipelines is an essential prerequisite for the successful liberalisation of the European gas markets. If new suppliers do not obtain access to existing gas pipelines, the possibility for gas (...)

The European Commission settles case with Norwegian gas producers in the context of liberalisation of European gas markets (GFU)
European Commission - DG COMP (Brussels)
,
Eurojobsites
,
Oikeus
"Liberalisation of European Gas Markets - Commission settles GFU case with Norwegian gas producers"* 1. Introduction The European Commission has recently intensified its efforts to liberalise European gas markets. Whilst originally only internal market rules were used to push for market (...)

Public sector

A Swedish Administrative Court orders payment of procurement award damages for use of company acquisition solely as a means of avoiding the public procurement procedure (Vega district)
Swedish Competition Authority (Stockholm)
Haninge Bostäder hit with a SEK 10 million fine* It is not permissible for a municipal corporation to circumvent procurement rules by buying a company with assets instead of procuring. This is confirmed by the administrative court in a judgement against Haninge Bostäder which completely follows (...)

The European Parliament and the Council indite an area of application for the directive on the award of concession contracts meant to combine the scopes of the directive on public sector awards and the directive on the award of utilities contracts
University of Bristol - Law School
Directive 2014/23 on concessions and the ’Frankenstein effect’* The more one analyses the content of Directive 2014/23 on concessions (the Concessions Directive), the more one realises that it is full of unnecessary complexities and that it is (unfortunately) a horrible example of the (...)

The Australian Competition and Consumer Commission grants authorisation to eight regional councils in New South Wales to enable them to jointly tender and contract for waste management
Australian Competition and Consumer Commission
Authorisation granted to eight NSW regional councils for joint tender arrangements* The Australian Competition and Consumer Commission has granted authorisation to eight regional councils in New South Wales to enable them to jointly tender and contract for waste collection services and (...)

The German Federal Court of Justice issues decision of principle on the award of concessions for electricity and gas networks
German Competition Authority (Bonn)
Federal Court of Justice issues decision of principle on the award of concessions for electricity and gas networks* Bonn, 18 December 2013: The Bundeskartellamt welcomes the landmark decisions issued yesterday by the Federal Court of Justice on the award of rights of way for electricity and (...)

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