State intervention

Anticompetitive practices

The US FTC issues an opinion denying antitrust exemption to a dental board blocking non-dentists from providing teeth-whitening services in accordance to the state action doctrine and democracy rules (The North Carolina State Board of Dental Examiners)
Cleveland-Marshall School of Law
North Carolina Dentists and the FTC’s Anti-Exemptions Mission: Is Antitrust Consistent With Democracy? (Yes, actually. It is.)* Some commentators are pretty alarmed over the Federal Trade Commission’s ruling earlier this year denying antitrust immunity for a North Carolina regulatory board’s (...)

The Romanian Competition Council fines for client sharing agreements 14 administrators of mandatory pensions funds, applying for the first time both Art. 101(1) TFUE and national mirror provision (Pension Funds administrators case)
Peli Filip
,
Peli Filip
On 16 September 2010 the Romanian Competition Council (the “Council”) published Decision n° 39/07.09.2010 sanctioning almost all the players in the Romanian market for private administration of mandatory pensions funds (14 out of 18 players active on the market) for a client sharing cartel (the (...)

The Spanish Supreme Court firmly protects price competition in the liberal professions and gives a controversial view on the interaction between EC and national competition Law (Ricardo)
European Court of Justice (Luxembourg)
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Garrigues
Introduction On 4 November 2008, the Spanish Tribunal Supremo (Supreme Court) handed down a landmark ruling in case 5837/2005, Ricardo v. Consejo General de la Abogacía. This case looks set to be a cornerstone of Spanish competition law for years to come. The judgment was delivered by the (...)

The Bosnian & Herzegovinan Competition Authority prosecutes regional Government for intervening with competitive process on the market for pharmaceuticals reimbursed under the national health insurance scheme (Association of Foreign Pharmaceutical Producers in Bosnia & Herzegovina / Cantonal Government Sarajevo)
University of Technology (Tallinn)
Summary Competition Authority of Bosnia & Herzegovina qualified the actions of the Sarajevo cantonal government that provided preferential treatment to the domestically produced medicines under the national health insurance scheme as anticompetitive practice and ordered it to modify its (...)

The Spanish Competition Authority issues a report on the fixing of minimum rates for road cargo transportation
Pontificia Comillas University - ICADE
On 17 June 2008, the Spanish Competition Authority (Comisión Nacional de la Competencia, hereinafter CNC) issued, at the request of the Ministry of Public Works and Infrastructure, a report on the fixing of minimum rates for road cargo transportation and its effect on competition under both (...)

The UK Competition Commission imposes inter alia price control to a major operator in the printed classified directories market (Yell)
RBB Economics (London)
On 21 December 2006, the UK’s Competition Commission published the results of its market investigation on the supply of printed classified directory advertising services (CDAS). In its report, the CC found that Yell, the largest supplier, had market power. This finding was based primarily on (...)

The Hungarian Competition Office fines a cartel in the agricultural sector in spite of intensive involvement of the State (Egg Cartel)
Oppenheim
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Oppenheim - Budapest
The HCO initiated proceedings against the Hungarian Association of Egg Producers (HAEP) and some of its members in 2005 in order to verify whether the HAEP and its members breached the cartel prohibition contained in Article 11 of the Hungarian Competition Act (HCA) and Article 81 of the EC (...)

The Hungarian Competition Office finds certain advertising restrictions on lawyers contrary to Art. 81 EC and its national equivalent (Hungarian Bar Association)
Oppenheim
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Oppenheim - Budapest
The Hungarian Competition Office (HCO) initiated proceedings against the Hungarian Bar Association (HBA) in order to verify whether certain rules of the HBA regulating advertising by attorneys as well as the content of webpages of attorneys infringe Article 81 of the EC Treaty and Article 11 of (...)

The French Council of State holds that the auditors code of Ethics does not impose or support the conclusion of agreements contrary to Art. 81 EC (KPMG)
European Court of Justice (Luxembourg)
Four big multi-fields networks, usually called the “big four” (KPMG, Ernst & Young Audit, Deloitte and Pricewaterhousecoopers Audit) and another accounting firm (the Grant Thornton company), submitted to the Council of State’s High Assembly, the question of the lawfulness of a decree of (...)

The Polish NCA restates that professional bodies must comply with competition law provisions notwithstanding the existence of potential alternative legal basis (Poznan Chemists’ Chamber)
French National Research Agency (ANR)
The decision at hand, rendered on December 15, 2005 recalls previous decisions issued by the President of the Office of Competition and Consumer Protection (hereafter “OCCP President”) (See J. Faruga and V. Metonidze, The Polish Competition Court upholds the decision of the competition authority (...)

The French Competition Authority condemns an agricultural economic committee for preventing access to the market and rejects the State’s action doctrine argument (Brittany cauliflowers)
Avocat au barreau de Paris
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The French Competition Council condemned on the 15 March 2005 the agricultural economic committee of fruit and vegetables of Brittany (CERAFEL) and several producers’ organizations for maintaining cartels in the wholesale marketing of Brittany cauliflowers. In the light of the recently enforced (...)

The Irish Competition Authority makes 47 recommendations to boost competition in the non-life insurance sector
London School of Economics
The Irish National Competition Authority (hereinafter “NCA”) has issued its report and recommendations on enhancing competition in the non-life insurance sector. The recommendations aim to reduce the cost of switching insurer and/or intermediary and to tackle structural and legal barriers to (...)

A Spanish Court refuses to qualify a contract as a resale agreement and holds that the qualification given by “administrative bodies” to similar agreements is not binding upon national courts (Melón / Repsol)
London School of Economics
Repsol Comercial de productos petrolíferos S.A. (hereinafter, “Repsol”), supplied oil products to Melón S.A. (hereinafter, “Melón”), pursuant to an agency agreement signed between the parties. Considering that it was not a “genuine” agency agreement and that Commission Regulation (EC) n° 2790/1999, of (...)

The German Federal Court of Justice holds that a municipality that subsidises certain trips with taxis or rental cars with an allowance does not infringe the vertical price fixing prohibition by entering into a framework contract with the service provider according to which the provider agrees to transport guests at a certain rate (Jugendnachtfahrten)
Linklaters (Dusseldorf)
Description of the impugned case The BGH holds that the obligation of the service provider to forward orders at fixed conditions does not constitute an infringement of the prohibition to fix prices for agreements with a third party as in the taxi drivers are under no obligation to provide (...)

The Italian Antitrust Authority declares the incompatibility with EC competition law of a national regulation requiring or facilitating the market sharing within a consortium of manufacturers of matches (Consorzio Industrie Fiammiferi)
Ashurst
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Legance - Studio Legale Associato
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Legance - Studio Legale Associato
Background With decision n. 8491 of 13 July 2000, the Autorità Garante della Concorrenza e del Mercato (Italian Competition Authority, hereinafter “Authority”) found the existence of a market sharing arrangement carried out within the Consorzio Industrie Fiammiferi (the consortium of the Italian (...)

Dominance

The Chinese Administration for Industry and Commerce (AIC) investigates and handles antimonopoly case against a local government for abuse of administrative power in the market for vehicles’ GPS services (Guangdong Province)
University of Melbourne
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China Competition Bulletin (Beijing)
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Institute of American Studies
The Administration for Industry and Commerce of Guangdong Province (Guangdong AIC) Investigated and Handled Local Government’s Administrative Monopoly Conduct* In January 2011, three companies complained to the Guangdong AIC, a local bureau of the SAIC, alleging that a municipal government of (...)

The Hellenic Competition Commission finds abusive the behaviour of a trade union benefiting of special and exclusive rights (Association of Merchants of the Central Vegetable Market of Athens and Thessaloniki / Union of Loaders, Unloaders and Carriers of Fresh Products of the Central Vegetable Market of Athens and Thessaloniki)
TM Law Offices
The case concerned a complaint filed in the Hellenic Competition Commission (hereinafter HCC) by the Association of Merchants of the Central Vegetable Market of Athens and the Association of Merchants of the Central Vegetable Market of Thessaloniki, alleging that the Union of Loaders, Unloaders (...)

The French Supreme Court questions allocation of costs in a predatory pricing Case (Vedettes inter-îles vendéennes)
Kramer Levin Naftalis & Frankel (Paris)
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Eversheds Sutherland (Paris)
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Eversheds Sutherland (Paris)
1. Facts and ruling The Régie départementale des passages d’eau de la Vendée (RDPEV) is the provider of a public service : it operates year-round in any weather daily ferry services for passengers, cargo and vehicles between the mainland and l’île d’Yeu. For this purpose, RDPEV uses three vessels : (...)

The German Federal Court of Justice rules that a public undertaking offering for rental public domain must held tender proceedings in order to comply with both freedom of competition and public welfare (“Zulassungsstelle/Schilderpräger”)
McDermott Will & Emery (Düsseldorf)
Background In Germany, the owner of a new or used automobile is obliged to register the vehicle with the registration office (“Zulassungsstelle”), which is part of the local public administration. Once a vehicle is registered, the owner is entitled to attach license plates to the vehicle. Since (...)

The Polish Competition Authority finds that the National Health Fund abused of its dominant position by imposing unfairly low prices for the purchase of health services (Narodowy Fundusz Zdrowia)
K&L Gates (Warsaw)
On March 7th, 2007, the Polish competition authority stated that the National Health Fund (Narodowy Fundusz Zdrowia - state institution responsible for financing health system in Poland) (“NFZ”), the state institution responsible for financing health protection services in Poland, abused its (...)

The Latvian Competition Council declares State owned airport fees discounts to be contrary to Art. 82 EC (Riga Airport)
Mittal Investments UK Ltd
Summary On 22 November 2006, the Latvian Competition Council declared the system of discounts applied by the “State Joint Stock Company International Airport Riga” (“Airport Riga”) to be contrary to Article 82 (c) of the EC Treaty prohibiting the abuse of a dominant position. The facts In July (...)

The Latvian Competition Council rules that Riga’s International Airport has infringed Art. 82 EC by imposing different tax discounts on air navigation services (Riga Airport)
Brown Brothers Harriman (BBH) (Luxembourg)
On 22 November 2006, the Latvian Competition Council (hereinafter “the Council”) ruled that Riga International Airport (hereinafter “the Airport”) infringed article 82 of the EC Treaty (hereinafter “ECT”) by applying the regulation n° 3 (hereinafter “the regulation”) adopted on 23 July 2004 by the (...)

The UK Competition Appeal Tribunal dismisses an appeal against an OFCOM decision which found that a telecom operator had not infringed Art. 82 EC nor Chapt. II prohibition of the UK Competition Act by disconnecting access to SIM cards (Vodafone / Floe Telecom)
Hogan Lovells
Background On 31 August 2006, the Competition Appeal Tribunal (the “Tribunal”) dismissed an appeal by Floe Telecom Limited (in administration) (“Floe”) against a decision of the Office of Communications (“OFCOM”) dated 28 June 2005 that Vodafone Limited (“Vodafone”) had not infringed section 18 (the (...)

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 Polish Competition Authority, by condemning a town for abusing its dominant position, restates that competition law apply to practices of local government units (Commune of Kielce)
French National Research Agency (ANR)
The present decision, rendered on December 2, 2005, concerns the practice of the Municipal Administration of Roads in the city of Kielce (the organizational unit of the commune of Kielce) consisting on the refusal to give access to the municipal transport bus stops to operators other than the (...)

The Court of Appeal of Paris confirms absence of predatory pricing on the basis of ECJ case law (VIIV/Régie départementale des passages d’eau de la Vendée)
Freshfields Bruckhaus Deringer (Paris)
,
Eversheds Sutherland (Paris)
The “Régie départementale des passages d’eau de la Vendée” (“RDPEV”) is entrusted with the operation of a public service : it operates regular ferry services (both for passengers and for cargo and vehicles) between the mainland and l’Île d’Yeu (an island off the Atlantic coast of France) all year round. (...)

The Danish Competition Authority launches an inquiry on possible anti-competitive effects of the exclusive right conferred for port harbour services (Copenhagen Malmö Port’s)
McDermott Will & Emery (Brussels)
Against the backdrop of a string of analyses of the abovementioned Act, the Danish competition authority carried out an examination of the competitive effects of Copenhagen Malmö Port’s exclusive right to offer harbour services in Copenhagen Free Port. The Danish competition authority at the same (...)

The German competition authority paves way for pre-postal services and rejects the State action defence raised against the application of Art. 82 EC (Deutsche Post)
White & Case (Miami)
On 11 February 2005, the German Federal Cartel Office (“FCO”) issued a decision in which it condemned the conduct of Deutsche Post AG in refusing access for providers of pre-postal services to certain mail delivery services provided by Deutsche Post and in denying discounts for those particular (...)

The Polish competition authority establishes that a town has abused of its dominant position by limiting the number of resellers for public transportation (Commune W.)
French National Research Agency (ANR)
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Orrick, Herrington & Sutcliffe (Washington)
On September 19th 2003, the President of the Office for the Competition and Consumers Protection (hereafter, OCCP President or, President of the Office) decided that the practice of Commune W. to limit the number of persons eligible to sell fixed term tickets for the city public transportation (...)

Luxembourg administrative courts find no anti-competitive practices in the context of a waste disposal scheme (SuperDrecksKëscht 2)
Arendt & Medernach (Luxembourg)
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NautaDutilh (Luxembourg)
Background This case deals with alleged anti-competitive practices in the context of a waste disposal project, “SuperDrecksKëscht 2” (now “SuperDrecksKëscht fir Betriber”). The initiators of this project were the Administration de l’Environnement (“Environmental Administration”) within the Ministry of (...)

The Hungarian Competition Office terminates proceedings in the motorway construction market regarding refusal to conclude a contract (Nemzeti Autópálya Rt.)
lakatos, koves and partners
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lakatos, koves and partners
In 2002 the Hungarian Competition Office (HCO) launched an investigation against National Motorway Ltd. (NA) in order to determine whether NA was in a dominant position in the motorway construction market, and if yes, whether it abused its dominant position when in 2000, it failed to respond to (...)

Mergers

The EU Commission clears in phase I a merger in the silicon sector examining possible coordination by the Chinese State of market behaviour of Chinese State-owned companies (China National Bluestar/Elkem)
Skadden, Arps, Slate, Meagher & Flom (Brussels)
How to deal with Chinese State-owned Enterprises under the EUMR?* On 13 September, the Commission published its decision of 31 March 2011 in China National Bluestar/Elkem. After DSM/Sinochem/JV (decision of 10 May but published in June), this was the second published decision which dealt in (...)

The EU Commission blocks a merger as its clearance would have resulted in a quasi-monopoly on the Greek air transport market (Olympic Air / Aegean Airlines)
University of East Anglia - CCP (Norwich)
Article published on Centre for Competition Policy blog. EU Commission Steers Clear of another Antitrust Disaster in Greek Air Transport, but for how long?* This month, the European Commission blocked the proposed merger between Greece’s two main airlines, Olympic Air and Aegean Airlines. What (...)

An Italian administrative Court asks the Constitutional Court whether a legislative measure having conditionally cleared the Alitalia/AirOne merger outside ordinary merger control is in compliance with the Italian Constitution (Federconsumatori)
All the undertakings are equal. It happens in Italy, however, that some undertakings are more equal than others and the State allows them to realise a concentration without subjecting them to ordinary merger control rules. The Italian Constitutional Court (Constitutional Court), in a (...)

State Aids

The EU Court of Justice interprets the concept of intervention through state resources and finds that the offset of additional costs arising from the obligation to purchase green electricity constituted state intervention (Vent de Colère)
College of Europe (Bruges)
Article published on Lexxion State Aid Blog The Non-Equivalence of the Various Methods of Supporting Green Electricity* Introduction Ever since the judgment of the Court of Justice in 2001 on PreussenElektra [case C-379/98], Member States have been grappling with the question of how to (...)

The EU Commission authorises aid in order to enable the concession holders to finalize two motorway projects that have encountered financial difficulties
College of Europe (Bruges)
Article published on Lexxion State Aid Blog Public Funding of Projects that Encounter Financial Problems* Main points Aid that is granted after the start of a project lacks incentive effect and is, therefore, incompatible with the internal market. However, aid may be justified when a project (...)

The EU Commission finds that the state aid granted under the form of a fiscal measure implemented in breach of the standstill provision was compatible with the internal market (Multiplier Giftenaftrek)
College of Europe (Bruges)
Article published on Lexxion State Aid Blog Fiscal Leveraging: Donations and State Aid for Culture and Sports* Introduction In this blog I examine primarily a Dutch measure that supports cultural institutions by providing tax incentives to individuals and corporations to make donations to (...)

The EU Commission concludes that the aid in the land purchase was compatible with the internal market under the regional aid guidelines (Habidite Alonsogeti)
College of Europe (Bruges)
Article published on Lexxion State Aid Blog Exceptional Circumstances, Natural Disasters, Commercial Risk and Rights of Complainants* Reduced commercial risk: Commission Decision 2013/198 on aid to Habidite Alonsogeti (ES) Habidite Alonsogeti (HA) was involved in the construction of social (...)

The Brussels Court of Appeal rejects State aid pleas in the context of a bank rescue plan (Fortis)
Sheppard Mullin (Brussels)
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European Court of Justice (Luxembourg)
1. Introduction In order to tackle the financial turmoil of last September, the Belgian State acquired in two steps Fortis Bank. Firstly, on 28 September 2008, the Belgian State (via the “SFPI”, the “Federal Participation and Investment Company”, together with the Luxembourg and the Dutch States (...)

The French Supreme Administrative Court delineates an administrative judge’s jurisdiction over governmental decisions when applying Art. 88.3 EC (Comité national des interprofessions des vins à appellations d’origine)
Kramer Levin Naftalis & Frankel (Paris)
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Orrick, Herrington & Sutcliffe (Paris)
This is the first time that the French Supreme Administrative Court has had to decide on an application for annulment for refusing to report State measures which may qualify as state aid. The case at stake provided the French Supreme Administrative Court with an opportunity to specify the types (...)

Procedures

The Slovak Competition Authority holds that health insurance companies carrying on public health insurance are not subject to the Slovak Competition Act (Report on Health Insurance sector)
BPV Braun Partners
On December 3, 2009 the Antimonopoly Office of the Slovak Republic (“Office”) released its report on general investigation with regard to a planned merger of two state-owned health insurance companies engaged in public health insurance. The Office found that providing for public health insurance (...)

The Maltese Commission for Fair Trading confirms that the Transport Authority was not an undertaking, consequently its monopoly was not subject to the Competition Act (Carmel Mifsud)
King’s College (London)
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Superior Courts of Malta
Competition law controls the anti-competitive agreements and the abusive behaviour of undertakings, but much anti-competitive behaviour is caused by the state. Complainants are often frustrated when they discover that the conduct of which they complain is attributable to the state acting in its (...)

The Maltese Commission for Fair Trading ruled for the first time on the basis of the 1994 Competition Act on the compatibility of the action of the Director of the NCA with notions of EC law and Maltese administrative law (Simonds Farsons Cisk)
King’s College (London)
The first judgment of the Commission concerned the price of beer. This case was brought under section 11 of the Competition Act, as originally drafted, under which power existed to regulate the price of ’essential’ products. This provision was not without controversy. In a competition-based (...)

Regulations

The German Federal Government plans to submit to the Parliament a new bill for a reform of the law applicable on renewable energy sources pointing out that the talks with the Commission concerning state aid-compatibility have not yet been concluded
Bird & Bird (Dusseldorf)
EEG 2.0: Federal Government and Federal States Reach Agreement on Important Issues of EEG Reform* After a meeting with the sixteen state premiers, Chancellor Angela Merkel (CDU) and Economic Affairs and Energy Minister Sigmar Gabriel declared that “a high degree of consensus had been reached” (...)

The Swiss Parliament is discussing a bill destined to reintroduce fixed book prices, once sanctioned by Swiss competition authorities for violating competition law
SWITCH
Historical Background On May 27, 2009, the National Council, one of the two chambers of the Swiss Parliament, voted in favour of the creation of a special act regulating the price of books (the Federal Act on Book Price Regulation, hereinafter the “Bill”). Although the second chamber, the States (...)

The Romanian Competition Authority opens public consultation on the preliminary report of the sector inquiry on the market for cereals used in the bakery industry (Raport privind investigaþia utilã pentru cunoaterea pieþei cerealelor de panificaþie)
University of Technology (Tallinn)
In September 2007 the Romanian Competition Authority (Consiliul Concurenţei) (CC) launched a sector inquiry on the market for cereals used in the bakery industry. The preliminary report was completed in February 2009 and released for public consultation in March. The CC invited interested (...)

The French Administrative supreme Court partly annuls the natural gas regulated retail price as the ministerial order does not allow the incumbent to cover its average total costs (Poweo a. o.)
Université Aix-Marseille
1 The regulatory background Directive 98/30/EC followed by Directive 2003/55/EC liberalized the market by broadening progressively the category of eligible clients, authorized to choose their supplier. Pursuant to article 23-1 of Directive 2003/55/EC, “Member States shall ensure that the (...)

The Luxembourg Competition Council issues an opinion on the market for taxi services anticipating a Parliament vote on a draft law
MOYSE BLESER law firm
Following a request from the Minister of the Economy and Foreign Trade of 19 September 2007, on 15 November 2007 the Council issued an opinion n° 2007-AV-02 on the question of whether the State is still allowed to fix prices in the market for taxi services under the conditions set out by the law (...)

The Brussels Court of Appeal highlights the Member States’ margin of discretion as regards the method of financing the universal service obligation in the postal and telecommunication sectors (Belgacom - Fund for the universal service in the telecommunication sector)
Sheppard Mullin (Brussels)
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UGGC Avocats (Brussels)
Background Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive) (OJEC L 108, 24 April 2002, pp. 51-77) provides that national regulatory (...)

The French Supreme Administrative Court annuls a State’s decision discriminating the reimbursement’s rate between princeps and generic drugs (GlaxoSmithKline)
Fréget - Tasso de Panafieu Avocats (Paris)
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Novartis (Basel)
1. The Regulatory Context: positive discrimination as a starting point and the TFR a possible end to it Sales of reimbursable medicines to consumers are heavily regulated in France, from the level of the pharmaceutical company manufacturing them all the way through to the ultimate individual (...)

The Luxembourg Administrative Court avoids ruling on alleged anticompetitive price regulation in the taxi sector (Grand-ducal regulation of 9 July 2004)
Arendt & Medernach (Luxembourg)
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NautaDutilh (Luxembourg)
Article 2-1 of the 2004 Luxembourg Competition Act (“loi du 17 mai 2004 relative à la concurrence”) introduced the principle that competition between undertakings determines prices. This provision accordingly abolished the general and significant price controlling powers of the Luxembourg State (...)

The Romanian authorities show increase concerns for competition issues in the health sector (National Health Programs)
Peli Filip
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Musat & Asociatii (Bucharest)
The past few years have shown an increased need for competition analysis in relation to the National Health Programs that have been adopted by the Romanian authorities based on the legal provisions. Background The market for pharmaceuticals is a nationally regulated market in all the Member (...)

Public sector

A Dutch Court considers that municipalities should be regarded as economic entities when they grant exclusive rights for outdoor advertising (KPN/JC Decaux)
European Commission - DG HR
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European Court of Justice (Luxembourg)
KPN is an undertaking which provides telecommunication services within the Netherlands. According to the Dutch Telecommunications Act, KPN had to ensure the availability of at least one public pay telephone in every residential dwelling zone of more than 5000 inhabitants. As KPN wished to (...)

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