Market definition

Dominance

The Czech Supreme Administrative Court supports findings by the Office for Protection of Competition as regards relevant market definition in predatory pricing case (Student Agency)
Weil, Gotshal & Manges (Prague)
On 30 September 2013, the Supreme Administrative Court cancelled the judgment of Regional Court in Brno in the case regarding alleged predatory pricing by Student Agency (a leading bus transport company) and remanded the case back to it. The Regional Court in Brno previously quashed the (...)

The Chinese Guangdong High People’s Court renders a judgment on the definition of relevant market in an alleged abuse of dominance case in the IT sector (Qihoo / Tencent)
Renmin University of China
I. Introduction 1. Beijing Qihoo Technology Co., Ltd. (hereinafter referred to “Qihoo”) is the copyright owner and operator of 360 safe software. Tencent Technology (Shenzhen) Co., Ltd., and Shenzhen Tencent Computer System Co., Ltd. (hereinafter referred to “Tencent”) are respectively the (...)

The Danish competition and consumer authority complets a competition analysis of the grocery market (Danish Grocery Market)
European Commission (Brussels)
Denmark: Analysis of Danish Grocery Market* In June 2011, the Danish Competition and Consumer Authority (DCCA) completed a competition analysis of the Danish Grocery market. The objective of this exercise was to study the competition among the retailers and the suppliers in the Danish grocery (...)

A US Court of Appeals holds that the lower court erred in defining the relevant geographic market in an antitrust monopoly claim over the para-aramid fiber industry under section 2 of the Sherman Act (E.I. du Pont de Nemours, Kolon)
Wolters Kluwer (Riverwoods)
Monopoly Claims Against DuPont Revived by Fourth Circuit* Claims that E.I. du Pont de Nemours and Company attempted to wield, and did wield, monopoly power over the U.S. para-aramid fiber market in violation of Sec. 2 of the Sherman Act should not have been dismissed, the U.S. Court of Appeals (...)

The Luxembourg Competition Council rules that an undertaking active in the tobacco industry did not enjoy a dominant position on the relevant market and was not subject to any specific duties as this would have been the case if it enjoyed such a position (Landewyck Group and Manufacture de Tabacs Heintz Van Landewyck)
Brown Brothers Harriman (BBH) (Luxembourg)
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Arendt & Medernach (Luxembourg)
On 10 December 2010, the Luxembourg Competition Council (“the Council”) has adopted the decision N°2010-FO-03 providing an assessment of the competition law situation on the tobacco products wholesale sales market. This decision, which does not sanction any undertakings active in this market, (...)

The EU General Court fines a company for abuse of a dominant position in the pharmaceutical sector addressing the issues of market definition and dominance analysis (AstraZeneca)
Cleary Gottlieb Steen & Hamilton (Brussels)
The General Court’s Judgment In AstraZeneca, Lessons For Market Definition And Dominance Analysis* On July 1, 2010, the European General Court rendered its judgment in the AstraZeneca case, dismissing for the most part AstraZeneca’s appeal against the Commission’s infringement decision of June (...)

The Slovak competition office gives an unprecedented definition of relevant product market for trade mark licensing (Envi-Pak)
University of Oxford
Background On 28 August 2009, the Slovak Antimonopoly Office (“AMO“) adopted a decision against, and delivered to ENVI-PAK, a.s. (“ENVI-PAK”), a company engaged in the waste package materials processing business. ENVI-PAK is the registered holder of the “Der Grüne Punkt” trade mark in Slovakia, (...)

The German Federal Court of Justice finds that there is no uniform product market for heat energy sources on the retail level and rather defines the market merely for the supply of end consumers with natural gas as the relevant product market (Erdgassondervertrag)
Berlin Freie Universität
I. Background The decision is the (temporary?) end of a series of conflicting German court decisions that disagree on the issue whether there is one uniform market for heat energy sources or separate markets for each of the relevant sources (fuel oil, coal, district heating, natural gas, (...)

The Lithuanian Supreme Administrative Court sends the alleged abuse of dominance by the postal incumbent back to the national competition authority for insufficient market definition (Lietuvos Patas)
Lithuanian Competition Council
On 22 December 2006 the Lithuanian Supreme Administrative Court (LSAC) annulled the judgment of the court of first instance (Vilnius District Administrative Court or VDAC) related to the Article 9 (abuse of dominance) infringement decision of the Competition Council in the Lietuvos Paštas case (...)

Mergers

The Irish Competition Authority publishes revised merger guidelines
Queen’s University Belfast
On December 20, 2013 the Irish Competition Authority published its revised Guidelines for Merger Analysis. These guidelines replace the last version, promulgated in December 2002. The Revised Guidelines have had the benefit of a request for comments (with ten resulting submissions) following (...)

The UK Competition Commission, unlike the French NCA, rules that operator of channel tunnel between Great Britain and France may no longer offer ferry services from Dover (Eurotunnel / SeaFrance / MyFerryLink)
Jones Day (London)
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Jones Day (London)
The UK Competition Commission (“CC”) has prohibited Eurotunnel from operating ferry services at the port of Dover, following its June 2012 acquisition of three SeaFrance vessels. The decision is notable for two reasons. First, this decision differed from that of the French Competition Authority (...)

The Italian Competition Authority clears the acquisition of 40% of a Spanish company active in the fishing, production, and sale of canned fish by Italian rival, notwithstanding the high market shares reached by the parties in the relevant markets (Bolton / Calvo)
Pirelli
The notified transaction On 20 April 2012, Bolton Group International S.r.l. (hereinafter also “Bolton”), a world player in the production and marketing of a wide range of consumer products and the first operator in the Italian markets for canned tuna and salmon operating through “Rio Mare”, (...)

The EU Commission approves the creation of a joint venture between two Brazilian groups that will combine their respective activities in the orange juice sector (Votorantim / Fischer)
"Merger: main developments between 1 May and 31 August 2011"* The Commission approved on 4 May 2011 the creation of a joint venture between the Brazilian groups Votorantim and Fischer that will combine their respective activities in the orange juice sector. Votorantim and Fischer, two (...)

The EU Commission prohibits the proposed merger between two Greek airlines companies as it would have resulted in a quasi-monopoly on the Greek air transport market (Aegean Airlines / Olympic Air)
Merger: main developments between 1 January and 30 April 2011* The European Commission has prohibited on 26 January the proposed merger between Aegean Airlines and Olympic Air, as it would have resulted in a quasi-monopoly on the Greek air transport market. This would have led to higher fares (...)

The UK competition authorities publish new merger guidelines
Van Bael & Bellis (Brussels)
On 16 September 2010, the Office of Fair Trading and the Competition Commission published the first set of consolidated joint Merger Assessment Guidelines under the UK Enterprise Act 2002, which governs merger control law in the UK. The guidelines supersede various merger control guidance (...)

The US DoJ and FTC revise horizontal merger guidelines which outline how the agencies evaluate the likely competitive impact of mergers and their compliance with US law
Stanford University - Stanford Law School
U.S. Department of Justice and Federal Trade Commission issue revised Horizontal Merger Guidelines* On 19 August 2010 the U.S. Department of Justice and Federal Trade Commission (“agencies”) issued revised Horizontal Merger Guidelines which outline how the agencies evaluate the likely (...)

The US FTC and DoJ releases for public comment a draft version of their new joint horizontal merger guidelines offering the opportunity to debate about the role of market definition and unilateral effects analysis
Skadden, Arps, Slate, Meagher & Flom (Brussels)
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Skadden, Arps, Slate, Meagher & Flom (Washington)
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Kirkland & Ellis (New York)
As the credit and capital markets continue to revive, companies around the world considering a return to greater mergers and acquisitions activity may be right to wonder whether recent antitrust law developments should deter those considerations. Notwithstanding the attention the various new (...)

A US District Court reaffirms importance of market definition in antitrust merger analysis (Golden Gate Pharmacy / Pfizer)
Skadden, Arps, Slate, Meagher & Flom (Washington)
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Skadden, Arps, Slate, Meagher & Flom (New York)
On April 16, 2010, Judge Maxine M. Chesney of the U.S. District Court for the Northern District of California dismissed a complaint raising a private antitrust challenge to the merger of Pfizer, Inc. and Wyeth Pharmaceuticals, because she concluded that the complaint failed sufficiently to (...)

The Serbian Government adopts new merger regulation and new guidelines for the definition of the relevant market
University of Technology (Tallinn)
On 1 November 2009 the Serbian Competition Authority (KZK) began to apply the new Law on Protection of Competition. As a result of the substantial changes and introduction of new legal institutes, Serbian legislator entrusted the Government with the task of adopting new secondary regulations, (...)

The German Bundeskartellamt clears in phase II a merger in the energy sector with remedies and still divides the relevant geographic market for gas supply in regional markets (EnBW-VNG/GESO)
Angermann
The German Bundeskartellamt cleared on August 24th, 2009 in phase II a merger between EnBW and VNG in the energy sector with remedies consisting in the sale of a subsidiary of EnBW (GESO). The Bundeskartellamt defines regional relevant geographic markets in the sector for grid-bounded gas (...)

The European Commission refines its analysis of relevant markets in the airline sector and accepts slot divestitures with grandfathered rights as remedy (Lufthansa/SN Airholdings)
Van Bael & Bellis
On 22 June 2009, the European Commission approved the acquisition by Deutsche Lufthansa AG («Lufthansa») of SN Airholding SA/NV, the holding company of SN Brussels Airlines («SN Brussels»), subject to commitments. This decision indicates that the Commission is moving towards a more nuanced analysis (...)

The Chinese MOFCOM invites comments on the draft Guidelines on the definition of relevant market
Kastell
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Linklaters (Beijing)
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Linklaters (Brussels)
Recent developments MOFCOM, the agency charged with merger review pursuant to the Chinese Antimonopoly Law, has recently accelerated the process of building the merger control regime in China. More specifically, as regards the substantive and procedural framework for merger review, MOFCOM is (...)

The European Commission conditionally clears a merger in the paper production sector (Arjowiggins/M-Real Zanders’ Reflex paper mill)
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European Commission - DG COMP (Brussels)
"Mergers: main developments between 1 May and 31 August 2008"* In June the Commission approved the proposed takeover of the Reflex paper production mill in Germany that currently belongs to the Finnish paper manufacturer M-Real, by the French paper manufacturer Arjowiggins, subject to (...)

The European Commission clears an acquisition in the production of PVC (Ineos/Kerling)
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European Commission - DG COMP (Brussels)
"Mergers: main developments between 1 January and 30 April 2008"* On 30 January the Commission approved the proposed acquisition of Kerling, the polymer division of the Norwegian company Norsk Hydro group, by the UK-based company Ineos. Both companies are active, inter alia,in the production (...)

The Portuguese Competition Authority approves the acquisition of an outlet centre holding a fragmented definition of the relevant market (Freeport’s outlet centre/Carlyle group)
Morais Leitão, Galvão Teles, Soares da Silva & Associados (Porto)
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Morais Leitão, Galvão Teles, Soares da Silva & Associados (Porto)
I. Introduction On March 28, 2007, the Portuguese Competition Authority (PCA) was notified of a concentration under which Carlyle Europe Real Estate Partners (Carlyle) notified the acquisition of sole control over Freeport Leisure Plc (Freeport), through a takeover bid of the share capital of (...)

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 European Commission conditionally clears a merger in the mining, processing and refining of nickel and other metals industry (Inco/Falconbridge)
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European Commission - DG COMP (Brussels)
"Mergers — Main developments between 1 May and 31 August 2006"* On 4 July the Commission granted conditional clearance to Inco’s acquisition of the Canadian company Falconbridge. Both parties to the transaction are Canadian companies active in the mining, processing and refining of nickel and (...)

Regulations

The England and Wales Court of Appeal reinforces that market definition is a tool in competition analysis and substance must prevail over form (Talktalk Telecom / Office of Communications & Anor)
Blackstone Chambers
TalkTalk v Ofcom – the Court of Appeal stresses that market definition is a tool not an end* The Court of Appeal, in TalkTalk v Ofcom [2013] EWCA Civ 1318, recently gave an important reminder to all competition practitioners that market definitions are a tool rather than an end: what matters is (...)

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