De minimis

Anticompetitive practices

De minimis: An overview of EU and national case law
Ashurst
1. Introduction* De minimis non curat praetor (the judge does not deal with trivial matters) was already the rule in Roman law around 2,000 years ago. So why would e-competitions care about de minimis to such a point that it is dedicating a full issue to the question? In truth, the question of (...)

De minimis : An overview of EU and national case law
University College London
1. De minimis in Article 101(1) TFEU The appreciability requirement has received renewed attention after the CJEU held in Expedia that ‘an agreement that may affect trade between Member States and that has an anti-competitive object constitutes, by its nature and independently of any concrete (...)

The European Court of Justice provides further guidance on long-term exclusive purchase and non-compete obligations (Estación de Servicio Pozuelo v Galp Energía España)
Van Bael & Bellis (Brussels)
On 4 December 2014, the European Court of Justice (the “ECJ”) issued an order addressing two preliminary questions from the Spanish Supreme Court concerning an exclusive purchase obligation, which presumably prevented the party bound by the exclusivity from purchasing the products of competing (...)

The European Commission adopts revised safe harbor rules for minor agreements and provides guidance on "by object" restrictions of competition
Jones Day (Brussels)
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Jones Day (Brussels)
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Jones Day (Amsterdam)
The European Commission has published revised safe harbor rules for agreements that are not deemed to appreciably restrict competition. This is the so-called "De Minimis Notice," the first version of which dates back to 2001. At the same time, the Commission also published guidance on the (...)

The EU Commission releases its revised de minimis notice explaining that agreements having as their object the prevention, restriction or distortion of competition within the internal market fall outside the scope of the notice
Primerio
Plus ça change, plus c’est la même chose: Revised EU de minimis notice retains % thresholds, clarifies per se rule* Nothing new: The newly-revised de minimis notice of the European Commission isn’t that novel The revised Notice (after its 1997 and 2001 predecessors) retains the 10% and 15% (...)

The Portuguese Competition, Regulation and Supervision Court affirms decision imposing a fine on the business forms cartel (Contiforme)
Abreu Advogados
Following the Portuguese Competition Authority (PCA) decision dated 19 December 2012 imposing a total EUR 1,797,978.51 fine on four companies of the graphic industry - Contiforme, Soluções Gráficas Integradas, S.A.; Copidata, S.A., (Copidata); Formato, Formulários Múltiplos Comerciais, S.A., and (...)

The UK Office of Fair Trading publishes revised guidance on applications for leniency and no-action in cartel cases
Van Bael & Bellis (Brussels)
On 8 July 2013, the UK’s Office of Fair Trading (“OFT”) published its revised guidance on applications for leniency and no-action in cartel cases. The publication follows two earlier consultations on the subject in October 2011 and October 2012 (see VBB on Competition, Volume 2011, No. 10) (...)

The French Supreme Court confirms the ability of NCAs to take action against anti-competitive agreements below de minimis thresholds (SNCF / Expedia)
Van Bael & Bellis (Brussels)
On 16 April 2013, the French Supreme Court ruled that national competition authorities (NCAs) are allowed to take enforcement actions against companies found to be in breach of Article 101 TFEU, despite market shares being below the thresholds established by the European Commission’s (...)

The Croatian High Administrative Court upholds the decision of the NCA concerning anti-competitive practices in the market for office supplies (Association of office supplies retailers)
University of Technology (Tallinn)
On 19 December 2012 the Croatian High Administrative Court (VUS) upheld the infringement decision of the Croatian Competition Authority (AZTN) against the Association of office supplies retailers (TUM) and its nine members that have infringed the national equivalent of Article 101 TFEU by (...)

The EU Court of Justice rules that a national competition authority is not precluded from applying Article 101(1) TFEU to an agreement situated below the threshold specified by de minimis notice (Expedia)
University of Leeds
Article published on Centre for Competition Policy blog. The Court of Justice’s Expedia ruling undermines the economic approach by eliminating the ‘de mimimis’ defence in object agreements* One of the most important holdings of the Court of Justice in recent times is buried in paragraph 37 of (...)

The EU Court of Justice rules that if there is an appreciable restriction of competition, national competition authorities may apply Art. 101(1) TFEU even if de minimis threshold is not reached (Expedia)
University College London
In a reference for a preliminary ruling under Article 267 TFEU, from the Cour de cassation (France), made by decision of 10 May 2011 in relation to proceedings between the company Expedia Inc. (’Expedia’) and the Autorité de la concurrence (’the Competition Authority’) the ECJ (Second Chamber) was (...)

The CJEU Advocate General Kokott asserts that agreements with an anti-competitive object cannot be deemed as de minimis infringements (Expedia)
Matrix Chambers
The concept of ‘appreciable restriction of competition’ in ‘object’ cases under Article 101(1) TFEU – AG Kokott in Expedia* On 6 September 2012 AG Kokott issued her Opinion in Case C-226/11 Expedia Inc. The case results from a preliminary reference made by the French Cour de cassation in (...)

The ECJ Advocate General Kokott hands down her opinion on the duty of the national authorities to respect the de minimis notice, while applying Art. 101 TFEU (Expedia)
Mircea & Partners (Bucharest)
I. Essential factual and legal aspects of the Expedia Inc Case The reference for a preliminary ruling has been initiated by a dispute between Expedia, an on-line travel agency, and the French Competition Authority, henceforth called FCA, concerning a selling joint-venture agreement between (...)

The Portuguese Supreme Court broadly interprets the de minimis principle in beer distribution private enforcement case
Eduardo Paz Ferreira & Associados
On the 17th May 2012, the Portuguese Supreme Court of Justice (STJ) dismissed a competition law-based defense in the framework of a dispute between a beer supplier and a retailer who failed to comply with exclusivity and minimum purchase obligations. The case stands out as one more in a number (...)

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 Paris Court of Appeal rejects appeals in the online travel sales sector for vertical practices and abuse of dominance under both EC and national provisions (SNCF / Expedia)
Novartis (Rueil-Malmaison)
BACKGROUND The Paris Court of Appeals (hereafter “the Court”) confirms a decision by the French Competition Council (hereafter “the Council”) which fined SNCF and Expedia, Inc. (hereafter “Expedia”) in a decision No. 09-D-06 of 5 February 2009. The appeal was brought by Karavel (a travel agency, (...)

The Spanish Competition Authority closes a resale price maintenance case, after applying the de minimis rule (El Corral de las Flamencas)
Lonza
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Cuatrecasas, Goncalves Pereira (Madrid)
On December 3, 2009, the Spanish Competition Authority(Comisión Nacional de la Competencia, “CNC”) closed a case of possible infringement of Article 1 of the Law 15/2007, for the Defense of Competition (“LDC”), involving the company El Corral de las Flamencas, S.L. (“El Corral”) fixing resale prices (...)

A Dutch Court of appeal rules that termination by supplier of distribution contract under pressure from competing distributors is concerted practice (Batavus - Vriend)
Van Doorne (Amsterdam)
I. Introduction This judgment of the Court of Appeal of Leeuwarden (“the Court”) is the latest in a series of judgments in a long running dispute relating to the termination in 2001 by Batavus B.V. (“Batavus”), a bicycle manufacturer, of its long term business relations with a retailer, Vriend’s (...)

The Austrian Supreme Court considers a shopping centre’s non-competition provision to be valid under the cartel-ban provision (McArthurGlen / Europark)
Salzburg University
On 25 March, 2009, the Austrian Supreme Court ruled that a shopping centre’s “radius-clause” provision (i.e. non-competition provision) is not anti-competitive because it does not make a significant contribution to the sealing-off effect brought about by the totality of such agreements in their (...)

The French Competition Council finds the incumbent rail operator guilty of implementing discriminatory practices in favor of its online travel subsidiaries and for entering into an anti-competitive partnership (SNCF /Expedia)
Kramer Levin Naftalis & Frankel (Paris)
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Orrick, Herrington & Sutcliffe (Paris)
I. Facts The French rail operator SNCF enjoys a legal monopoly on passenger rail transport. However, train tickets themselves are sold through three main distribution channels : SNCF’s physical sales points as well as its merchant website operated by its VSC subsidiary (which altogether account (...)

The Turkish Competition Authority decides that a price-fixing agreement between bread manufacturers does not appreciably restrict competition (Bergama Firincilari)
University of Sussex
This study analyses the decision of the Turkish Competition Authority (TCA) in which it has decided that a price-fixing agreement, which was entered into by twelve small- and medium-sized bread manufacturers in a small town in the West of Turkey, did not appreciably restrict competition even (...)

The Croatian Competition Authority holds illegal resale price maintenance obligations imposed by a wholesaler of household electronics on its buyer (M San Grupa / Rivulus)
University of Technology (Tallinn)
The respondent company M SAN Grupa d.d.(MSG) was a large wholesaler of the household electronics. The applicant company Rivulus d.o.o.(Rivulus) was buying various electronics items from MSG by placing the orders on the MSG’s website. It was then selling the goods through its own distribution (...)

The Hungarian Competition Authority closes case against a professional association (Hungarian Chamber of Pharmacists)
Van Bael & Bellis (Brussels)
By an order of 4 November 2008, which has recently become publicly available, the Hungarian Competition Authority (“GVH”) decided to terminate its investigation into alleged anti-competitive practices by the Hungarian Chamber of Pharmacists (the “Chamber”) on the market for pharmaceuticals. The (...)

The Hungarian Competition Authority finds RPM agreement to be de minimis (Büki Ásványvíz)
Oppenheim
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Oppenheim - Budapest
Description of the impugned case The non-alcoholic beverage distribution agreements in question contained straightforward RPM clauses. Nevertheless, the HCO took into account that these agreements represented only a small portion of the supplier’s distribution portfolio and of the relevant (...)

The Belgian Competition Council clears a local opening hours scheme for pharmacists (F.N.H. / Ordre des pharmaciens - GLEP 30)
Liège University - IEJE
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Liège University - IEJE
I. Parties This case arose from a complaint lodged by a retail pharmacy outlet (“the applicant”) before the Belgian Competition Council (“the Council”) Initially, the complaint targeted the Belgian Pharmacists Association (“BPA”), but the Council subsequently decided on its own motion to extend the (...)

A German Court rules on the exclusive iPhone distribution agreements (Apple/T-Mobile)
Gleiss Lutz (Munich)
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Milbank, Tweed, Hadley & McCloy (Munich)
On 4 December 2007 the German Regional Court of Hamburg issued a decision on the compatibility with competition law and the law against unfair practices of the exclusive distribution agreement concluded between the German mobile network operator T-Mobile and the American multinational (...)

A Madrid Court applies the de minimis doctrine to a 3% market share (Galp)
European Court of Justice (Luxembourg)
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Garrigues
On September 3, 2007, a Spanish Commercial Court (Juzgado de lo Mercantil) based in Madrid rejected the claim filed by two service station operators against their supplier, Galp Energía España, S.A. (Galp). The two service station operators had held that some of the clauses within the agreements (...)

The German Federal Cartel Office issues new notices on agreements of minor importance and on the application of antitrust provisions to SMEs’ horizontal cooperation agreements
Blomstein
Introduction The Federal Cartel Office (FCO) has issued two revised information leaflets providing for guidance with regard to the application of both European and German competition law by the FCO: (1.) The new notice on agreements of minor importance (“de minimis notice”) and (2.) the new (...)

The Polish Competition Authority condemns anticompetitive agreements on two local markets of photo services related to personalised documents (PWPW)
French National Research Agency (ANR)
President of the Office of Competition and Consumer Protection (Prezydent Urzedu Ochrony Konkurencji i Konsumentów), 24 July 2006, Decision n° RGB 13/2006, concerning, inter alia, the practices of Polska Wytwórnia Papierów Wartosciowych S.A. (PWPW ) in Warsaw Polska Wytwórnia Papierów (...)

The Bulgarian Commission on Protection of Competition grants individual exemption of an exclusive distribution agreement (GlaxoSmithKline)
ArbJournal
In the beginning of 2006 GlaxoSmithKline Ltd, Bulgaria, (GSK) notified the Commission on Protection of Competition (CPC) about an exclusive distribution agreement (Agreement) entered into between GSK and Agroengineering-90 Ltd (Agroengineering) on 21 December 2005. Subject of the agreement are (...)

A Portuguese Court finds that a beer distribution agreement does not appreciably restrict competition (Sociedade Central de Cervejas / Factorfina Consultores)
London School of Economics
Centralcer - Central de Cervejas, S.A. (one of the main beer manufacturers in Portugal, hereinafter referred to as “the supplier”) signed a single-branding agreement with Factorfina Consultores Lda. (hereinafter, “the purchaser”) in 1997. In exchange for ESC 7.605.000, the purchaser agreed not to (...)

A Belgian Court holds that a provision requesting feedback on resale prices does not constitute resale price maintenance (IDH Diamonds / Billiton Diamonds)
Leuven University
Description of the impugned case This case involved two undertakings active in the diamond industry, IDH Diamonds NV (‘IDH’) and BHP Billiton Diamonds Belgium NV (‘BHP’). In 1997 they had entered into an agreement under which IDH would become a ‘regular client’ of BHP, whose customers for diamonds (...)

The Brussels Court of appeal issues a preliminary ruling on the successive application of EC Reg. N° 1984/83 and N° 2790/1999 on the application of Art. 81.3 EC to vertical agreements and concerted practices and rules on the de minimis doctrine (Brasserie Haacht)
Sheppard Mullin (Brussels)
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Notre Europe
This is a judgment of the Brussels Court of Appeal responding to a request for a preliminary ruling from the Court d’appel de Liège ("Court of Appeal of Liège"), on the application of Article 81 EC and vertical block exemption regulations to a beer supply agreement setting up an exclusive (...)

The Hungarian Competition Office imposes a € 5.6 M fine in software public tenders and refuses to apply the de minimis doctrine (SAP)
lakatos, koves and partners
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lakatos, koves and partners
In 2004, the Hungarian Competition Office (HCO) launched proceedings against SAP Hungary Kft. (SAP), International Business Machines Magyarország Kft. (IBM), International System House Kft. (ISH), Synergon Informatikai Rendszereket Tervező és Kivitelező Rt. (Synergon) and ORACLE Hungary Kft. (...)

A Portuguese court states that a beer distribution agreement does not appreciably restrict competition on the basis of Art. 81 EC and inflicts a fine of € 77,715 (Centralcer/Nascimento)
London School of Economics
Centralcer - Central de Cervejas, S.A. (one of the main beer manufacturers in Portugal, hereinafter referred to as ‘the supplier’) signed in 1997 a single-branding agreement with Carmo José Augusto Nascimento (hereinafter, ‘the purchaser’). It was agreed between the parties that the contract would (...)

The German Higher Regional Court of Düsseldorf holds that hardcore restrictions are not per se appreciable if the relevant market share is below 1% (Tschechisches Bier)
Gleiss Lutz (Munich)
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Milbank, Tweed, Hadley & McCloy (Munich)
On 23 June 2004, the German Higher Regional Court of Düsseldorf issued a decision on the compatibility with EC law of a contract concerning an exclusive right to import Czech beer into Germany . Facts The plaintiff used to be the sole importer and authorised dealer in Germany for Budweiser (...)

The UK OFT clears the standard licensing conditions of an association following amendments (Association of Film Distributors)
Orrick, Herrington & Sutcliffe (London)
I. Introduction On 1 February 2002, the UK Office of Fair Trading (“OFT”) published its decision on the amended standard conditions for licensing the commercial exhibition of films (the “Amended Conditions”) notified by the Film Distributors’ Association Ltd (“FDA”) . Following recommendations from (...)

The European Commission adopts a draft concerning the revision of the notice on agreements of minor importance (de minimis Notice)
European Commission - DG COMP
"Revision of the 1997 Notice on agreements of minor importance (de minimis Notice)"* The Commission adopted on the 16th of May a draft de minimis Notice and invites comments from industry, consumer organisations and other interested third parties. The revision is part of the Commission’s review (...)

A Luxembourg Commercial Court rules that a de minimis exclusive distribution agreement is not prohibited under Article 85 EC (La Pastourelle / Rolling)
FratiniVergano
1. Facts On 1 April 1982, "la Pastourelle" (hereafter "the plaintiff"), limited company under Belgian law, and "Maison Rolling" (hereafter "the defendant"), shop located in Luxembourg, concluded an exclusive sale agreement for a duration of 5 years. This agreement was extended for the same (...)

The former Spanish second-tier Competition Authority rules that an agreement between two savings banks to coordinate the closing of their offices in several small villages was covered by the former “de minimis” exemption (Cajas Rurales Jalón y Zaragoza)
European Court of Justice (Luxembourg)
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Garrigues
In a Decision dated November 15, 1999, the former Spanish second-tier Competition Authority (“Tribunal de Defensa de la Competencia”, hereinafter, the “TDC”) ruled that an agreement between two savings banks to coordinate the closing of their offices in several small villages was subject to an (...)

The Hungarian Competition Office exempts supply agreements with vertical restraint (Henkel Magyarország)
lakatos, koves and partners
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lakatos, koves and partners
In 1998, the Hungarian Competition Office (HCO) initiated an investigation against Henkel Magyarország Kft. (Henkel) in order to determine whether supply agreements for glues concluded between Henkel and various retailers in Hungary comply with the prohibition of anti-competitive agreements. The (...)

The Italian Competition Authority assesses a de minimis franchising contract (Il Tucano Franchising)
Ashurst
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Pirelli
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Background On 13 November 1997 the ICA issued its first decision regarding the compatibility of a franchise contract with the prohibition of anticompetitive agreements. The agreement which was assessed by the ICA regarded the franchising network set up by Il Tucano Franchising for the retail (...)

The Belgian Competition Council rules that a resale price maintenance system in the petfoods sector constitutes a prohibited anti-competitive practice (Laroy-Duvo)
Johnson & Johnson (Brussels)
Description of the impugned case Laroy-Duvo imports petfoods from the USA and distributes these products in Belgium. It imposed fixed retail prices on its distributors. Its distributors were repeatedly and explicitly warned that if the retail prices are not respected, they will no longer be (...)

The Austrian Supreme Court voids a judgment of the Cartel Court on the assessment of a "radius clause" provided for in the lease agreements of a shopping centre (UNO Shopping/PlusCity)
Reidlinger Schatzmann Rechtsanwälte
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Bpv Hügel (Vienna)
In a decision of 25 March 2009, the Austrian Supreme Court decided to void a judgment of the Cartel Court on the assessment of a "radius clause" provided for in the lease agreements of a shopping centre in the Linz area. 1. Facts and decision at first instance The case at hand is the result (...)

Dominance

The French Competition Authority rejects a request for interim measures regarding practices in the sector for advertising displays on the rail network and in the sector for passengers transport between Paris and London (Eurostar, SNCF & France Rail Publicité)
French Competition Authority (Paris)
Press Release published on the official website of the French Competition Authority. Complaint by British Airways against Eurostar, the SNCF and France Rail Publicité. The Conseil de la concurrence rejects the request for interim measures filed by British Airways.* On 18th November 2004, the (...)

Mergers

German merger control regime: An overview
Freshfields Bruckhaus Deringer (Berlin)
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Freshfields Bruckhaus Deringer
In over 35 years of its existence, the German merger control regime has gained a strong reputation all over the world due to its influential role in post-war Europe, high rate of enforcement and the important place held by the competition authority in charge of its enforcement, the (...)

The UK Competition Commission finds no substantial lessening of Competition in an acquisition in the treasury management advisory services (Sector Treasury Services, Butlers, ICAP PLC)
Herbert Smith Freehills (London)
Background On 31 March 2011, the Office of Fair Trading ("OFT") referred to the Competition Commission ("CC") for investigation and report under the Enterprise Act 2002 ("the Act") the completed acquisition by Sector Treasury Services Limited ("STS") of Butlers, a trading division of ICAP plc (...)

The UK OFT decides to clear proposed national address gazetteer joint venture on the basis of the de minimis exception (Ordnance Survey and Local Government)
Herbert Smith Freehills (Brussels)
I. Introduction and background Ordnance Survey (OS) is an independent non-ministerial government department which produces a wide range of mapping products. Local Government Improvement and Development (LGID) is the business name of the Improvement and Development Agency for Local Government (...)

The Spanish Competition Authority fines infrastructures groups in the logistics and telecoms sectors for not meeting the obligation to notify the acquisition of a service provider of digital terrestrial television and broadcasting transport to television stations (Abertis and Tradia/Teledifusión)
Lonza
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Cuatrecasas, Goncalves Pereira (Madrid)
On January 26, 2010, the Spanish Authority (Comisión Nacional de la Competencia, “CNC”) jointly and severally fined Tradia Telecom, S.A. (“Tradia”) and its parent companies Abertis Telecom, S.A. and Abertis Infraestructuras, S.A. (collectively referred to as “Abertis”) €143,000 for acquiring (...)

The UK OFT clears a merger in the passenger rail transport sector while applying the SLC test and de minimis exemption to rail franchise (Govia / South Central Passenger Rail)
Desogus Law Office (Cagliari)
1. Introduction By its decision of 17 August 2009 the OFT unconditionally cleared the Govia acquisition of South Central Passenger Rail Franchise (the Franchise) without referring it to the Competition Commission for further examination. The OFT decision is worth reading for it makes some (...)

The UK OFT refers two mergers in the market for local bus services to the Competition Commission (Stagecoach Group of Eastbourne Buses - Cavendish Motor Services)
Desogus Law Office (Cagliari)
The Office of Fair Trading (OFT) has recently referred to the Competition Commission (CC) two mergers between local bus operators . In October and December 2008, Stagecoach acquired the entire share capital of two Eastbourne local bus operators, first Eastbourne Buses and Cavendish Motor (...)

The German Cartel Office initiates new investigation of a previously cleared acquisition and imposes additional conditions (Werhahn & Nauen)
Van Bael & Bellis (Brussels)
In a recently published decision of 9 March 2009, the German Federal Cartel Office (“FCO”) opened a new investigation and imposed additional conditions on a previously cleared concentration in the asphalt sector. In 2005, the FCO cleared the acquisition by Werhahn & Nauen of several entities (...)

The UK OFT clears merger in the environment noise management systems sector on the basis of the de minimis exemption (Spectris plc/Lochard Ltd)
Herbert Smith Freehills (Brussels)
On 29 January 2009, the Office of Fair Trading (the "OFT") announced that it had cleared the acquisition of Lochard Ltd by Spectris plc on the basis of the de minimis exception. This is only the seventh case in which the OFT has used the de minimis exception as grounds for a decision not (...)

The German Parliament introduces second domestic turnover threshold for merger control (Third Act to Cut-Back Bureaucratic Burdens in Particular in the Small and Medium-sized Economy)
Fried Frank Harris Shriver & Jacobson (London)
On 25 March 2009, a significant change to Germany’s merger jurisdictional thresholds entered into force. The revision exempts many transactions that were previously caught from the obligation to submit a notification to the German Federal Cartel Office (FCO). I. The new second domestic turnover (...)

A German Court of appeals reinforces the application of the de minimis exemption for merger control by constraining the application of the “bundle theory" (Asphaltmischwerke Langenthal)
Fried Frank Harris Shriver & Jacobson (London)
1. Introduction German merger control notification thresholds are extremely low and a large number of transactions are notified to the German Federal Cartel Office (Bundeskartellamt"FCO") every year. For example, 2231 notifications were submitted to the FCO in 2007 . However, a notification is (...)

The UK OFT accepts undertakings in newspaper merger, clarifying that its de minimis guidance is not a "get out of jail free" card for small mergers (Dunfermline press / Berkshire regional newspapers)
Herbert Smith Freehills (Brussels)
On 4 February 2008, the Office of Fair Trading ("OFT") announced that it had suspended its duty to refer Dunfermline Press Limited‘s ("DPL ") acquisition of the Berkshire Regional Newspapers ("BRN") portfolio of 8 local newspaper titles from Trinity Mirror plc to the Competition Commission (...)

The German FCO prohibits vertical merger in the construction sector (Faber, BAG)
Van Bael & Bellis (Brussels)
In a recently published phase II decision, the German Federal Cartel Office (FCO) prohibited the vertical merger between Faber Straßen- und Tiefbau GmbH (Faber), which is active in the German road construction sector, and asphalt mix company Basalt-Actien-Gesellschaft(BAG). As a result of the (...)

The Federal Supreme Court of Germany and the Düsseldorf Court of Appeals overrule the Federal Cartel Office’s prohibition and dissolution of a merger in the market for cartridges in the construction and industrial sector and fittings for medical and dental treatments (Sulzer, Kelmix and Werfo)
NERA (Berlin)
Transaction and Parties Sulzer Markets & Technology AG intended to acquire 75,1% of Kelmix Holding AG , 76% of Werfo AG, 76% of Mold AG and 100% of the founder’s rights of Mold Anstalt. Sulzer and Kelmix manufacture, among other things, two-component cartridges used for the filling of (...)

The German Federal Court clarifies merger control exemption by broadening the scope of the so-called de minimis market exemption (Sulzer/Kelmix)
WegnerPartner
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Hogan Lovells (Munich)
The German Federal Court of Justice recently published a decision which limits the application of the German merger control regime by broadening the scope of the socalled de minimis market exemption. As a consequence, the number of mergers that are subject to a mandatory filing requirement to (...)

The German National Competition Authority applies new de-minimis exemptions to limit merger notifications of real estate and loan portfolio asset deals
Freshfields Bruckhaus Deringer (Berlin)
Introduction Section 37(1) of the Act against Restraints of Competition (ARC) defines four events that constitute a concentration within the meaning of the German merger control regime, and thus trigger the obligation to notify the Federal Cartel Office (FCO) of a transaction, provided that (...)

A German Court limits the Bundeskartellamt’s jurisdiction in merger cases on the basis of the de minimis doctrine (du Pont de Nemours / Pedex)
McDermott Will & Emery (Düsseldorf)
Background German merger control law provides that transactions where the participating undertakings meet certain thresholds must be notified to the Federal Cartel Office (“FCO”). However, the law also provides for a de-minimis provision according to which a notification is not required if the (...)

The Irish Competition Authority revises its guidance on merger notification criteria
Baker Botts (Brussels)
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Merilampi Attorneys
Introduction On 12 December 2006, the Irish Competition Authority issued revised guidance on merger notification criteria. The new notice modifies the Competition Authority’s 2003 guidance note on the interpretation of certain merger control provisions under the Competition Act 2002. The (...)

The German Federal High Court holds that the de minimis condition of merger control does not apply (i) if there are related markets which are not de minimis, or (ii) if the sum of geographically related markets is not de minimis (Deutsche Bahn/KVS Saarlouis)
CRA International (London)
Summary The Bundesgerichtshof (Federal High Court) decided in the context of an appeal against a blocked merger between the local transport arm of Deutsche Bahn and regional transport company KVS, which operates in the Saar Region. The parties appealed against the Bundeskartellamt (Federal (...)

The German Federal Cartel Office prohibits a merger in the residential furnishings sector while giving guidance on the question of representativeness of market surveys and restricting the scope of application of the de minimis exemption (AGRO)
Gleiss Lutz (Munich)
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Milbank, Tweed, Hadley & McCloy (Munich)
On 29 September 2004 the German Federal Cartel Office prohibited the proposed merger between the American company Leggett & Platt, Inc. (L&P), a manufacturer and distributor of inter aliaresidential furnishings, and AGRO Federkernproduktions GmbH (AGRO), a German manufacturer of (...)

State Aids

The European Commission finds State aid in the form of subordinated loans to SMEs to be compatible with the internal market (Subordinated loans for SMEs – Saxony)
College of Europe (Bruges)
Loans for SMEs* Low-interest loans may be used to support investments. The granting of de minimis aid through loans is possible only if loans are secured against collateral. The 2008 Commission Communication on interest rates does not apply to subordinated, non-collateralised loans. (...)

The EU General Court upholds the decision of the Commission stating that compensatory payments can be State aid even if partially funded by private funds and specifies that recovery may exclude payments that satisfy the conditions of the relevant de minimis regulation (Greece)
College of Europe (Bruges)
Compensatory Payments Can be State Aid* Main points Article 107(1) also applies to payments that offset the damage caused by natural disasters. It is irrelevant that the compensation is partial or that competitors did not suffer similar damage. A measure can be State aid even if it is (...)

The EU Court of Justice finds failure to fulfil treaty obligations, since the member state did not recover the aid declared unlawful and incompatible with the internal market in a timely and effective manner (Commission / Spain)
College of Europe (Bruges)
Article published on Lexxion State Aid Blog The Cost of not Recovering Incompatible Aid* Main points The Commission is not obliged to quantify precisely the amount of aid that has to be recovered. The Member State that fails to recover incompatible aid or fails to recover all of it risks (...)

The Court of Justice of the European Union dismisses France’s action against the Commission’s decision declaring an unlimited guarantee incompatible with the internal market (La Poste)
DLA Piper
There is no doubt that undertakings entrusted with
the provision of services of general economic interest (SGIEs) are subject to the rules in the Treaty on the Functioning of the European Union (TFEU), including its state aid rules. However, compensation for providing such public services also (...)

The EU Commission issued new de minimis rules for state aid control
College of Europe (Bruges)
Article published on Lexxion State Aid Blog The New Rules on De minimis Aid for 2014-2020: Regulation 1407/2013* Introduction It is appropriate to start this year’s articles on State aid with an appraisal of one of the most important new legislative items for the period 2014-2020: the new de (...)

The European Commission opens public consultation on reform of state aid de minimis regulation
Van Bael & Bellis (Brussels)
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Abbie (Wavre)
The European Commission has opened a public consultation on reform of the de minimis Regulation. According to this Regulation, aid measures below a certain threshold do not constitute state aid in the meaning of EU state aid rules because they have no impact on competition and trade in (...)

The EU General Court annuls Commission decision for interpreting thresholds in guidelines on national regional aid as a de minimis rule (Smurfit Kappa)
Van Bael & Bellis (Brussels)
In a judgment of 10 July 2012, the General Court disagreed with the European Commission which had held that the formal investigation procedure provided for in Article 108 (2) TFEU should not be initiated when the thresholds relating to market shares and to the increase in production (...)

The European Commission adopts new package to assess the public compensation granted to services of general economic interest
Van Bael & Bellis (Brussels)
The European Commission has adopted a revised package to assess the public compensation granted to services of general economic interest (“SGEI”) under the EU state aid rules: a new Communication clarifies key concepts underlying the application of the State aid rules to public service (...)

A Swedish Administrative Court annuls a decision of a municipal council to sell a swimming arena but refuses to consider the EC State aid point of view on the basis of possible de minimis exemption (Ingolf Falk)
Swedavia AB
,
General Court of the European Union (Luxembourg)
,
Öberg & Associés
Factual background The applicant is a local resident. He appealed the municipal council in Övertorneå’s decision to sell a swimming arena for 1,00 SEK to the Administrative Court. The sale was not preceded by a public bidding procedure, nor by any independent expert evaluation of the property (...)

The Romanian Competition Council approves a regional State aid scheme to support investments made by small and medium-size companies
European Security Transport Association (ESTA)
The Romanian Competition Council has approved, on 1st February 2008, a regional state-aid scheme designed to promote the investments made by small and medium-sized economic actors in certain economic-development related activities. The scheme, which should come into force immediately, will be (...)

The European Commission approves German aid scheme for tenants of technology centres and incubators
Agency for the Cooperation of Energy Regulators (ACER) (Slovenia)
"Commission approves German aid scheme for tenants of technology centres and incubators"* On 3 May 2005, the Commission authorised, on the basis of Article 87(3)(c) EC, a German aid scheme providing public support for the creation or development of incubators and technology centres, with newly (...)

The European Court of Justice upholds the Commission’s decision concerning State aid implemented by the Netherlands for Dutch service stations located near the German border and clarifies the interpretation of the de minimis rule
European Commission - DG COMP
"Clarification on the interpretation of the de minimis rule in State aid — the European Court of Justice upholds the Commission’s Dutch service station decision"* Introduction On 13 June 2002, the European Court of Justice (‘the Court’ or ‘the ECJ’) upheld (‘the Judgment’) the Commission’s (...)

The French State’s Council held that only measures affecting trade between member States and contrary to Art. 87 EC have to be notified (Glénat)
CRDEI - Centre de Recherche et de Documentation Européennes et Internationales
Well known for its comics publications, the Glénat publishers extended their reputation in State aid case law literature (Case commented in French, Dr. Adm., note M. Bazex et S. Blazy, February 2002, n° 21, p. 15 et RJF, February 2002, n° 249). The issue raised here is procedural. It concerns (...)

The European Commission adopts new "de minimis" rule for State aid
European Commission - DG COMP
"The Commission Adopts New "De Minimis" Rule"* In 1992 the Commission set out its policy on state aid for small and medium-sized enterprises (SMEs) in Community guidelines (OJ C 213 of 19.8.1992). In an effort to reduce the administrative burden on the Member States and on the Commission (...)

Procedures

The Austrian Government concludes a public consultation on the proposal for amendments to the competition law regime
European Commission
Austria: Proposal for Amendment of Competition Law* On 29 February 2012, the public consultation on the proposal for amendments to the Austrian competition law regime was concluded: the evaluation of the comments is on-going. Following this process a revised proposal will be referred to the (...)

The Spanish Parliament amends the competition act to boost economic activity
Callol, Coca & Asociados (Madrid)
1. Introduction: the Sustainable Economy Act 1.1. On 15 February 2011, the Spanish Parliament has passed the Sustainable Economy Act, which introduces several structural reforms aimed to boost economic activity in Spain. Amongst such reforms (which include, for instance, measures relating to (...)

The Romanian Government substantially amends its competition law (Emergency Ordinance 75/2010)
European Investment Bank
In line with the increased activity of the Romanian Competition Council (hereinafter, the “RCC”), translated into more sector inquiries, a new leniency policy (together with a “leniency task force”) and the opening of several investigations, the Romanian Competition Law 21/1996 (hereinafter, the (...)

The Danish Parliament adopts amendments to its national competition act
Danish Competition and Consumer Authority (Copenhagen)
On 29 April 2010 the Danish Parliament adopted amendments to the Danish Competition Act, the three most important being: (i) a significant lowering of the merger control threshold and amendments to the notification procedure; (ii) removal of the de minimis rule in relation to certain (...)

The Romanian Government adopts substantial reform of the Romanian competition law
Van Bael & Bellis (Brussels)
On 5 August 2010, the Government Emergency Ordinance 459/2010 (hereinafter, the “GEO”) amending the Romanian Competition Law 21/1996 (hereinafter, the “Romanian Competition Law”) entered into force. The substantial amendments made to the Romanian Competition Law follow legal developments in the (...)

The Czech NCA circulates a draft amendment to the act on the protection of competition aimed at a harmonisation with substantive EC competition law, inclusion of specific procedural rules and launch of private enforcement
Government of the Czech Republic
,
European Court of Justice (Luxembourg)
In May 2008, the Czech Office for the Protection of Competition circulated a draft amendment to the Czech Act on the Protection of Competition, requesting for comments by the different authorities involved and the interested public prior to the introduction of the bill in the Parliament. The (...)

The German Federal Court rules on the geographic relevant market to calculate the merger de minimis threshold (Sulzer/Kelmix)
University of Bonn
On September 25th, 2007, the German Federal Court (Bundesgerichtshof, BGH) decided in Sulzer/Kelmix (KVR 19/07), that the geographically relevant market as referred to by section 35(2) n° 2 of the German Act against Restraints of Competition (Gesetz gegen Wettbewerbsbeschränkungen, GWB) comprises (...)

The Spanish Parliament adopts a new competition act
Martinez Lage, Allendesalazar & Brokelmann (Madrid)
A new competition Act has entered into force in Spain since September, 1st 2007. The new Act entails a significant reform of the Spanish competition regime and will bring in further harmonisation of Spanish competition law with the EU rules. The new Act replaces the individual authorisation (...)

The Spanish Congress passes a new competition act (Law n° 15/2007)
Hogan Lovells (Madrid)
The Spanish Congress passed on 14 June 2007 a long awaited new Competition Law that will enter into force on 1 September 2007 ("the New Competition Act"). The new Law modernizes the Spanish Competition system by introducing significant changes, at both institutional and substantive levels. As (...)

The former Spanish second-tier Competition Authority rules that a non-compete clause of unlimited duration did not infringe either EC nor national competition provisions on the basis of a "de minimis" yet unwritten rule (Hardi International)
European Court of Justice (Luxembourg)
,
Garrigues
In a Decision dated March 27th, 2000, the former Spanish second-tier Competition Authority (“Tribunal de Defensa de la Competencia”, hereinafter, the “TDC”) ruled that a non-compete clause ancillary to a merger of unlimited duration did not infringe either Article 81 EC or Article 1 of the Spanish (...)

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