Exclusive distribution

Anticompetitive practices

Exclusive distribution: An overview of EU and national case law
Gibson Dunn (Brussels)
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Gibson Dunn (Brussels)
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Gibson Dunn (Brussels)
An impartial commentator cannot but be surprised that, 45 years after the Consten and Grunding ruling in the E.U., 34 years after the Sylvania ruling in the U.S. and one year after the last reform undertaken by the European Commission (the "Commission") in this area, exclusive agreements (...)

The South African Competition Tribunal dismisses a monopolization case brought by the Competition Commission against a leading brewer and distributor of beer and soft drinks (South African Breweries)
Nortons Incorporated
SA competition enforcer’s distribution monopoly case dismissed by Tribunal* South African Breweries distribution case dismissed The Competition Tribunal of South Africa has dismissed a monopolization case brought by the Competition Commission against South African Breweries (“SAB”). The (...)

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

The Italian Competition Authority launches an investigation into a suspected breach of Article 101 TFEU in relation to the supply of nutrition products for wellness and fitness (Enervit)
Queen Mary University (London)
In November 2013, after receiving a complaint from a pharmacist and owner of a website for online retail shopping, the Italian Antitrust Authority (AGCM) has started a formal investigation on vertical restrictions of competition stemming from agreements between Enervit S.p.A. (Enervit), a (...)

The French Competition Authority accepts commitments in relation to exclusivity agreements in the multi-brand gift cards sector (Accentiv’Kadéos)
Hewlett Packard (Boulogne-Billancourt)
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Affinion International
In its decision N°11-D-08 dated 27 April 2011, the French Competition Authority (the «Competition Authority«) accepted the commitments offered by Accentiv’Kadéos in relation to exclusivity agreements between it and its partner brands in the multi-brand gift cards sector. Background On August 2009, (...)

The Hungarian Metropolitan Court of Appeal upholds an infringement decision of the NCA concerning an exclusive supply and purchasing arrangement and finds that the addressees of the decision have no standing to challenge immunity granted to another party (Kortex Mérnöki Iroda)
Ernst & Young
The Metropolitan Court of Appeal upheld a decision of the Hungarian Competition Authority concerning an exclusive supply – exclusive purchasing arrangement and found that the addressees of the decision have no standing to challenge immunity granted to another party. I. The background of the (...)

The UK Court of Appeal grants permission to appeal and proceed to a full trial on defence against trademark infringement allegations (Oracle / M-Tech)
Stanford University - Stanford Law School
English Court of Appeal allows M-Tech’s appeal against Oracle* On 28 August 2010, the English Court of Appeal issued a judgment setting aside an order for summary judgment by the High Court of Justice, thus granting M-Tech permission to appeal and proceed to a full trial to defend itself (...)

The European Commission adopts new vertical agreements block exemption regulation and vertical restraints guidelines
Van Bael & Bellis
On 21 April 2010, the Commission adopted final versions of the new Vertical Agreements Block Exemption Regulation (“VABER”) and Vertical Restraints Guidelines (“Guidelines”). The new VABER will enter into force on 1 June 2010, and will expire at the end of May 2022. The new VABER provides for a (...)

The French Competition Authority accepts the commitments to waive distribution exclusivity on mobile telephones ("i-Phone" Apple - Orange)
Norton Rose Fulbright (Paris)
On 11 January 2010, the French Competition Authority handed down its first decision of 2010, accepting the commitments undertaken by Apple and Orange to waive any distribution exclusivity on current and future iPhones models. Such Commitment Decision, taken pursuant to Article L. 464-2 I of (...)

The French Competition Authority fines incumbent telecom operator in overseas territories and applies EU case law on presumption of liability of parent companies for the first time (Orange Caribbean)
European Commission (Brussels)
France: The Autorité fines Incumbant Telecom Operator in the Overseas Territories and applies EU Case-Law on Presumption of Liability of Parent Companies for the first Time On 9 December 2009, the Autorité de la concurrence imposed on Orange Caribbean, the incumbent and leading telecom operator (...)

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 French Competition Authority fines € 6.9 M a football association and a rights for sports management agency for anticompetitive agreements on the market for audiovisual rights (FFF-Sportfive)
Credit Agricole
Following its 2001 and 2004 decisions to investigate competition in the field of management of professional football rights, the Autorité de la concurrence imposed a fine of 6.9 million € on the Fédération Française du football (FFF), the French football association, and Sportfive for their (...)

The French Competition Authority issues an opinion on the review of EC Regulation 2790/99 and of the European guidelines on vertical restraints
French Competition Authority (Paris)
Press Release published on the official website of the French Competition Authority. The Autorité de la concurrence welcomes the modernization undertaken by the European Commission and recommends that the Commission better explains the balance it intends to guarantee between online trade and (...)

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

The German Competition Authority adopts decision on exclusive distribution and non-compete clauses for chemical products (Merck, VWR International)
Van Bael & Bellis
In a recently published decision of 14 July 2009, the German Competition Authority found that an agreement between Merck and VWR International Europe (“VWR”) for the distribution of chemical products used by laboratories was contrary to Article 81 EC and the equivalent provision of German law. (...)

A French Court renders a new decision relative to the selection of distributors of new vehicles in a qualitative and quantitative selective distribution system (Sodac / BMW France)
Vogel & Vogel
Legal disputes often arise relative to the selection of distributors of new vehicles in distribution systems that are both qualitative and quantitative in the various Member States of the EU. An analysis of the decisions rendered reflects the significant difficulties, after entry into force of (...)

The Croatian Competition Authority imposes interim measures following an assessment of the unilateral termination of the motor vehicle distribution agreement (Simatic v. Tomic)
University of Technology (Tallinn)
Summary The Croatian Competition Authority ordered the exclusive importer of the BMW automobiles into Croatia Tomic & Co. d.o.o. to include its former distributor and repair service provider Simatic d.o.o. in the network of authorized spare parts retailers and repair service providers. (...)

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 (...)

The Romanian Competition Authority grants an individual exemption for the exclusive distribution agreements concluded by the leading sugar products manufacturer with its distributors (Cadbury Romania)
University of Technology (Tallinn)
Summary The Romanian Competition Authority granted an individual exemption under Article 5(1) of the Competition Law n° 21/1996, a provision equivalent to Article 81(3) EC for a series of exclusive distribution contracts concluded between leading sugar products manufacturer SC Cadbury Romania (...)

The Paris Court of appeals confirms the NCA’s interim measures preventing exclusive rights regarding the distribution of the iPhone (Apple - Orange - France Télécom)
White & Case (Paris)
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Reseau de transport d’electricite (RTE)
In a decision dated 4 February 2009, the Paris Court of Appeals confirmed decision n° 08-MC-01 of the French Competition Council concerning practices implemented in the distribution of iPhones. This decision was anxiously awaited by mobile phone operators competing with Orange and which began (...)

The Croatian Competition Authority establishes the existence of anticompetitive practices on the market for servicing of motor vehicles (Adria Lada)
University of Technology (Tallinn)
On 24 September 2009 the Croatian Competition Authority (Agencija za zastitu trzisnog natjecanja) (AZTN) concluded its investigation on the market for distribution and servicing of motor vehicles, more specifically - the servicing agreements concluded by the exclusive distributor of Lada (...)

The Croatian Competition Authority imposes interim measures following an assessment of the motor vehicle exclusive distribution agreement (Adria Lada v. SPID)
University of Technology (Tallinn)
Summary The Croatian Competition Authority (Agencija za zaštitu tržišnog natjecanja) (AZTN) following a complaint launched by SPID d.o.o. obliged the official distributor of “Lada” automobiles in Croatia ADRIA LADA d.o.o. to publicly announce the criteria it applies for certification of the service (...)

The French Competition Authority orders the suspension of the iPhone exclusivity on the basis of Art. 81 EC (Bouygues Telecom/Apple-Orange)
French Competition Authority (Paris)
The Conseil de la concurrence considered that the agreements entered into between Orange and Apple were likely to introduce further rigidity, to increase consumer captivity due to smartphones attraction and, through the implementation of a differentiation strategy, to reduce competition in a (...)

The Romanian Competition Authority grants an individual exemption for the exclusive distribution agreements concluded by the leading chocolate producer with its distributors (Kraft Foods Romania)
University of Technology (Tallinn)
Summary The Romanian Competition Authority granted an individual exemption for exclusive distribution contracts concluded between chocolate producer Kraft Foods and its 14 distributors. Initially concerned with the risk of raising entry barriers and reduction of inter-brand competition among (...)

The Turkish Competition Board grants individual exemption to an exclusive distribution agreement (GlaxoSmithKline / Pfizer)
University of Leeds
In an interesting decision on 20 June 2008, the Turkish Competition Board (TCB) has granted an individual exemption to an exclusive distribution agreement between GlaxoSmithKline Pharmaceuticals Co. and Pfizer Pharmaceuticals Ltd after refusing to grant negative clearance to the agreement under (...)

The Hungarian Competition Office grants immunity in proceedings concerning exclusive supply agreement in the context of a public procurement tender (Olympus)
Ernst & Young
According to its press release of 21 December 2007 in its decision concerning an exclusive supply agreement between two undertakings, the Competition Office imposed a fine of HUF 77 million (ca. € 308 000) on Kortex Mérnöki Iroda Kft., a Hungarian engineering company, while it granted immunity (...)

The Hungarian Competition Authority invokes cartel rules and leniency policy with regard to an exclusive distribution agreement in the healthcare sector (Kortex / Olympus)
Van Bael & Bellis
On 18 December 2007, the Hungarian Competition Authority (“GVH”) fined Kortex Mérnöki Iroda Kft. (“Kortex”), a company specialised in the construction of hospitals and the distribution of medical equipment, HUF 77m (approximately € 300,000) for concluding an anti-competitive agreement with Olympus (...)

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 (...)

The French Competition Council holds anticompetitive an exclusive purchase clause in a selective distribution agreement (NGK Spark Plugs)
Simmons & Simmons (Paris)
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Hewlett Packard (Boulogne-Billancourt)
French Competition Council (Conseil de la concurrence), 21 July 2006, Decision n° 06-D-22, related to NGK Spark Plugs France practices in the plug market for two-wheel vehicles (“relative à des pratiques mises en oeuvre par la société NGK Spark Plugs France sur le marché des bougies pour deux (...)

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

The Cyprus Competition Authority imposes a fine on three pay-TV operators for restrictive exclusive distribution agreements (Channel LTV...)
International Transport Forum
On June 2, 2006 the Commission for the Protection of Competition (hereinafter C.P.C.) put an end to its ex-officcio investigation of the pay-TV industry in Cyprus imposing a total fine of CY£ 535 on Channel LTV, Multichoice Ltd (LTV’s platform administrator) and NETMED NV (Multichoice’s majority (...)

The Hungarian Council of the Competition Office finds exclusive press distribution agreements anticompetitive but exempts them under the national block exemption regulation on vertical agreements (Pesti Est Media)
Hogan Lovells
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Background The Pesti Est media company is the largest player on the market of free program magazines in Hungary, distributing 130,000 copies a week of its magazine in Budapest. The Competition Office started an investigation into whether Pesti Est’s exclusive agreements in relation to their (...)

The UK High Court holds that an unlawful non-compete clause cannot be severed from the exclusive distributorship agreement if such severance would destroy the fundamental nature of the agreement (Courage)
UK Competition and Markets Authority (CMA) (London)
A. Introduction In its judgment of 1 March 2006 the England and Wales High Court (Commercial Court) ("the High Court") made an important ruling on the severability of a non-competition clause in the context of the termination of an exclusive distributorship agreement. The High Court held that (...)

The Brussels Court of Appeal awards damages for active sales breaching an exclusive distribution agreement (Horas International / Rexit)
Smartflats
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Liège University - IEJE
The facts The appellant in this case is a Belgian firm whose business activities consist in distributing furniture and accessories (hereafter the “distributor”). The defendant is an Italian company specialized in the design and production of furniture (hereafter the “manufacturer”). In 1985, the (...)

The French Competition Authority sanctions several companies for having engaged in vertical price agreements regarding the distribution of video cassettes for children (Disney video cassettes)
French Competition Authority (Paris)
Press Release published on the official website of the French Competition Authority. Disney video cassettes for children: The Conseil de la concurrence fines the companies BVHE, Casino, Carrefour and SDO for engaging in vertical price agreements.* Following a referral from the Ministry of (...)

The Danish Competition Council clears a beer standard distribution agreements in the gastronomic sector subject to commitments alleviating the exclusivity effects of the agreement on the basis of Art. 81/82 EC (Carlsberg)
Danish Competition and Consumer Authority (Copenhagen)
On 26 October 2005 the Danish Competition Council granted clearance subject to commitments to Carlsberg’s supply agreements with the gastronomic sector. The Danish Competition Authority was concerned that the degree to which Carlsberg was binding its retailers might be in conflict with Articles (...)

A Dutch Court considers that the statutes of a farmer association containing an exclusive supply obligation do not breach Art. 81.1 EC (VTN)
European Commission - DG HR
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Dutch Ministry of Security and Justice
The plaintiffs were members of the Coöperatie Voedingstuinbouw Nederland (VTN), a cooperative association of farmers in Holland. Pursuant to an exclusive supply obligation contained in VTN’s statutes, VTN’s members were compelled to sell their production of vegetables exclusively to the (...)

The European Commission fines a motor vehicle manufacturer for infringement to Article 81EC in a parallel import case (Peugeot)
European Commission - DG COMP (Brussels)
"Parallel import of motor vehicles: the Peugeot case"* The Peugeot decision, adopted by the Commission on 5 October 2005, imposed a fine of 49.4 million euros for breach of Article 81 EC on the motor vehicle manufacturer Automobiles Peugeot SA (‘Peugeot‘), and its subsidiary Peugeot Nederland (...)

The Hungarian Competition Authority concludes that the agreements offered by the Budapest Sports Stadium are capable of distorting competition and have the potential of infringing Art. 81 EC (Arena Uzemelteto / Multimedia Light and Sound / Ticketpro)
KNP Law Nagy Koppany Varga & Partners
The Budapest Sports Arena (BSA), a 12,000 seating capacity, state of the art, multifunctional sports and entertainment complex was first opened to the public in March 2003. It was built on the place of the Budapest Sports Hall, which was completely destroyed in a devastating fire five years (...)

The Spanish Competition Court holds that car manufacturers with a market share below 30% may freely choose the members of their distribution or repair and maintenance network (Citröen)
Hogan Lovells (Madrid)
Background The Agrupación de Agentes y Servicios Oficiales Citröen de Cataluña (hereinafter, “the ASOCC”), an association of the repair shops integrated in the repair and maintenance services’ network of Citröen in the region of Cataluña, lodged on 1 October 2003 a complaint before the Spanish (...)

The Court of Appeal of Brussels confirms the conformity with Art. 81 EC of an exclusive beverages supply agreement (Emond / Brasserie Haacht)
BDGS Associés (Paris)
In a decision dated of 23 June 2005, the Court of Appeal of Brussels confirmed the conformity of a supply agreement of beverages with the Article 81 of the EC treaty. The facts leading to this decision were the following. On 24 June 1993, M. Emond signed a supply agreement with the brewery (...)

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

A Dutch Court hearing an application for interim relief declares a selective distribution agreement contrary to Art. 81.1 EC and void (Polar/Walstock)
European Commission - DG HR
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Dutch Ministry of Security and Justice
Polar is a producer of a range of heart rate monitors and had, for many years,in accordance with an oral distribution agreement, been supplying Walstock, a retailer of sport products. Polar decided, however, to change its distribution policy by distinguishing several range of heart rate (...)

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 English High Court ruled on the applicability of a national doctrine in circumstances where it has previously been held that, in principle, the issue falls within the scope of Art. 81 EC (Days Medical Aids/Pihsiang Wu)
Sheppard Mullin (Brussels)
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Facts of the case Days Medical Aids Ltd (“DMA”) carried on business as, inter alia, an importer of wheelchairs and scooters designed to assist people with mobility problems. Pihsiang Machinery Manufacturing Co Ltd (“PMM”) exported substantial numbers of scooters worldwide. In 1996, DMA and PMM (...)

The European Commission approves the amended supply agreements between largest Belgium brewer and horeca outlets located on the Belgium market (Interbrew)
Netherlands Authority for Consumers & Markets (The Hague)
"European Commission opens up Interbrew’s Belgian horeca outlets to competing beer brands"* On 15 April 2003, the European Commission approved the amended supply agreements between Interbrew, the largest brewer in Belgium, and pubs, restaurants or hotels (horeca-outlets) located on the Belgian (...)

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 European Commission adopts a negative decision under article 85(1) EC Treaty in a case regarding restraints on parallel trade between Member States (BASF Lacke + Farben)
European Commission - DG COMP (Brussels)
"Agreement preventing parallel trade"* In line with its well-established policy of vigorously combatting agreements or practices which artificially divide the common market and thereby prejudice the basic aims of the European Union, the Commission adopted on 12 July 1995 a negative decision (...)

The Irish NCA assesses the prices and exclusive provisions of a major entertainment events tickets reseller on the basis of both national and EC competition laws (TicketMaster Ireland)
London School of Economics
The National Competition Authority has rejected allegations that TicketMaster (hereinafter “TicketMaster”) Ireland is abusing its dominant position through excessive pricing and that its exclusive contractual relations with certain promoters constitute infringements of Art 81 EC and its domestic (...)

Dominance

The Higher Regional Court of Naumburg decides on the compliance of post-contractual non-compete obligations under antitrust rules (Hubarbeitsmaschinen)
Commeo
The Higher Regional Court of Naumburg (“the Court”) deals in its decision of 18 July 2013 inter alia with the question whether post-contractual non-compete obligations are still in compliance with antitrust rules in case their duration exceeds five years. The Court came to the conclusion that a (...)

The Competition Commission of India finds no anti-competitive effect of exclusive distribution agreement that conferred monopoly in the aftermarket for medical equipment warranty services (Dr. Anoop Bhagat v. Spectra Medical System India and Solta Medicals)
University of Tilburg - Center for Law and Economics (TILEC)
Background The Competition Commission of India in a recent matter found that allegations regarding Exclusive Distribution Agreement and Abuse of Dominant Position were not true and thus rejected the matter out rightly finding not even a prima facie case. However, the merit of the complaint did (...)

The German Federal Court of Justice confirms dismissal of wholesaler action against publisher of newspapers and magazines (Bauer Media Group)
Van Bael & Bellis (Brussels)
On 24 October 2011, the German Federal Court of Justice (the Court) dismissed the appeal of a press distributor (the “plaintiff”) who had brought an action against a publisher (the “defendant”), claiming that the publisher was under a duty to continue supplying the distributor on an exclusive (...)

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 Croatian Competition Agency rejects claim of abuse of a dominant position in the movie sector (Kino Zadar Film/Blitz film i video distribucija and Duplicato Media)
University of Zagreb - Faculty of Economics and Business
Croatian Competition Agency rejected on 24 February 2011 as unfounded a claim of an independent movie theatre in the coastal town of Zadar (Kino Zadar Film d.o.o.) that vertically integrated movie distributors (Blitz film i video distribucija d.o.o. and Duplicato Media do.o.o.) abused their (...)

The Paris Court of Appeal rejects the applicability of Art. 101 and 102 TEU but upholds the findings that two telecom operators had abused their dominant positions in the telephony markets (Orange Caraïbe and France Telecom)
French Competition Authority (Paris)
The Court of Appeal ruled on 23 September 2010 in the Orange Caraïbe case. It mainly upheld the findings of the French Competition Authority. Nonetheless, ruling out the applicability of Article 101 and 102 on doubtful grounds, it also quashed the decision insofar it found a margin squeeze in (...)

The French competition authority rules that an over-general exclusivity clause to the benefit of an undertaking in a dominant position prevents access to the market for other potential operators (Titres Cadeaux / Kadéos)
Vogel & Vogel
The company Titres Cadeaux complained that the company Kadéos was foreclosing the markets for the distribution and redeeming of multi-store gift cards by systematically including exclusivity clauses in its contracts with traders. It therefore filed a complaint with the Competition Authority for (...)

The Bulgarian Supreme Administrative Court dismisses the charges of abuse of dominance launched against domestic tobacco producer (Iosini)
University of Technology (Tallinn)
Iosini Ltd, an undertaking based in Stara Zagora, was distributor of the leading domestic tobacco manufacturer Bulgartabac. It distributed Bulgartabac’s products both on wholesale level selling to other distributors and on retail level through a network of its own retail locations. Bulgartabac (...)

The Serbian Competition Authority finds abuse of dominant position on the market for TV content distribution via DTH technology (Serbia Broadband)
University of Technology (Tallinn)
Summary Serbian Competition Authority (Комисија за заштиту конкуренције) (KZK) established an abuse of dominant position on the part of Serbia Broadband (Serbia Broadband - Srpske Kablovske mreže, д.о.о. ) (SBB) that concluded exclusive distribution agreements with a number of national, regional and local TV channels (...)

The Serbian Competition Authority finds abuse of a dominant position in the market of RTV direct-to-home distribution services (Serbia Broadband II)
University of Belgrade
In its rather scarce practice in the field of abuse of a dominant position, the Serbian Competition Authority (“Komisija za zastitu konkurencije”) has for the second time adopted a decision against the leading Serbian distributor of RTV programs - Serbia Broadband (SBB). The so-called Serbia (...)

The Croatian Constitutional Court affirms the constitutionality of certain provisions of the Competition Act and its application in conformity with the EU standards (P.Z.A.)
University of Technology (Tallinn)
Summary The Croatian Constitutional Court rejected the challenge against AZTN’s decision prosecuting the exclusive importer of the Volkswagen automobiles in Croatia for abuse of dominant position in accordance with the EU standards applied to this type of violation of competition law. The Court (...)

The Canadian Federal Court of Appeal ruled that the Competition Tribunal had made an error in law in applying paragraphs 79(1)(b) and 79(1)(c) of the Competition Act and defined, for the first time, the meaning and framework of abuse of dominance provisions (Canada Pipe)
Université de Laval
Facts Canada Pipe Company Co., acting through its division Bibby Ste-Croix, offered distributors a loyalty rebate program so called the “stocking distributor program” (SDP) under which Canada Pipe gave significant rebates and discounts to distributors that purchase all of their requirements for (...)

The German Bundeskartellamt fines spice producers again for exclusivity clauses and other contractual agreements that could lead to factual exclusivity (Fuchs, Teuto)
Norton Rose Fulbright
In a decision dated 9 May 2006, the German Federal Cartel Office (“FCO”) has imposed a fine of EUR 250.000 against TEUTO Gewürzvertriebs GmbH (“TEUTO”), an undertaking belonging to the Fuchs Gewürze group, for violating a prohibition decision of the FCO dating back to July 2002. 1. Background The (...)

The Paris Court of appeal upholds a decision of the NCA fining a manufacturer for exclusive distribution agreements and RPM but annuls the part of the decision regarding rebates (Royal Canin)
MAPP (Paris)
Background In a decision dated June 22, 2005, the French Competition Authority (“FCA”) imposed a fine of € 2,500,000 on Royal Canin, a manufacturer of pet food, and fines ranging from € 1,000 to € 1,500,000 on several of its wholesalers and retailers. The FCA held that (i) Royal Canin and its (...)

The UK Office of Fair Trading accepts commitments offered by a free news paper alleviating its exclusive distribution rights in London underground and train stations (Metro - Associated Newspapers Ltd.)
Freshfields Bruckhaus Deringer (London)
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King’s College (London)
On 1st March 2006 the OFT adopted a decision accepting binding commitments offered by Associated Newspapers Limited (ANL). Accordingly, the OFT closed its file in respect of an investigation into an alleged breach by ANL of UK and EC competition rules through the conclusion of contracts (...)

The UK telecommunications regulator closes an investigation under Art. 81 and 82 EC, and equivalent UK provisions, on alleged anticompetitive and abusive price of telephone services to hospital patients in spite of long duration exclusivity clause (Patientline, “Premier”)
Compass Lexecon (London)
Summary The Office of Communications (“Ofcom”) has decided to close an investigation under Articles 81 and 82, and equivalent UK national competition law, into the price of telephone services to hospital patients. Patientline plc (“Patientline”) and Premier Telecom Contracts Limited (“Premier”), (...)

Mergers

The Hungarian Competition Authority establishes that the conclusion of exclusive distribution agreements could also constitute a concentration under certain circumstances (Pappas Auto, Danube Truck/Iveco)
Dentons (Budapest)
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Hungarian Competition Authority (Budapest)
I. Facts Pappas Auto Magyarország Kereskedelmi és Szervíz Kft. (“Pappas Auto”) and Danube Truck Magyarország Kft. (“Danube Truck”) acquired the vehicle distribution, spare part supply and maintenance branches of IVECO commercial vehicles and buses from IVECO S.p.A. (“IVECO”). Both Pappas Auto and (...)

The French Competition Authority’s clears the take-over of an agricultural co-operative by means of an exclusive distribution agreement (Terra Lacta / Orlait)
Gide Loyrette Nouel (Paris)
Sodiaal is a leading dairy cooperative in charge of transformation and marketing of dairy products (drinking milk, cheese, milk powder, etc.). Orlait SAS is an indirect subsidiary of Sodiaal, active mainly in the trading and marketing of long-life drinking milk. Terra Lacta is a dairy (...)

The French Competition Authority approves the implementation of an injunction after a merger in the pay TV sector (Canal Plus / TPS)
French Competition Authority (Paris)
Press Release published on the official website of the French Competition Authority. The Autorité de la Concurrence approves three reference offers from the Groupe Canal Plus, after amendments. The first one regulates access of independent channels to distribution services by CanalSat; the (...)

The French Competition Authority clears, subject to commitments, a merger in the retail grocery sector in Martinique (Bernard Hayot / Cora)
French Competition Authority (Paris)
Press Release published on the official website of the French Competition Authority. The Autorité de la concurrence clears, subject to commitments, the acquisition of a Cora hypermarket by Groupe Bernard Hayot on Martinique (French West Indies)*. The Autorité de la concurrence is today (...)

The Chinese MOFCOM imposes conditions on merger in pharmaceutical industry (Novartis / Alcon)
Jones Day (Beijing)
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Gibson Dunn (Hong Kong)
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Jones Day (Beijing)
After a four-month review, on 13 August 2010, China’s Ministry of Commerce (“MOFCOM”) authorized Novartis‘ acquisition of Alcon subject to conditions. Taking different approaches than one would see in the U.S. or European Union, MOFCOM’s decision is notable for the demanding view it takes of (...)

The Chinese MOFCOM blocks $2.4 billion acquisition of a leading Chinese juice producer by a foreign buyer (Coca-Cola / Huiyuan)
White & Case (Beijing)
,
Mattel (Hong Kong)
On March 18, MOFCOM announced that it had blocked Coca-Cola’s proposed $2.4 billion acquisition of China Huiyuan Juice Group, a leading Chinese juice producer. It is MOFCOM’s second reported merger decision under the recently enacted Anti-Monopoly Law (“AML”), which came into effect August 1, 2008 (...)

The Turkish competition board, while accepting the failing company defense, clears a merger conditional to remedies in the daily political newspapers market (Vatan Newspaper / Dogan Group)
Erdem & Erdem
The Turkish Competition Board (hereinafter referred to as the “CB”) in its decision numbered 08-23/237-75, dated March 19, 2008 granted conditional authorization for the acquisition of the sole control of Bagımsız Gazeteciler Yayıncılık A.S. and Kemer Yayıncılık ve Gazetecilik A.S. (hereinafter (...)

The Spanish Competition Authorities authorises an operation of concentration consisting of an exclusive license to distribute “Tampax” products in Spain and Portugal (Procter & Gamble/Arbora & Ausonia)
Herbert Smith Freehills (Madrid)
The Spanish Competition Authorities have recently considered that the license granted by Procter & Gamble to Arbora & Ausonia to use the “Tampax” brands for the distribution of “Tampax” products in Spain and Portugal constitutes an operation of concentration within the meaning of article (...)

The French Minister of Economics clears a merger in the sector of daily and weekly regional press with remedies, including bundling prohibition, editorial autonomy and commitments to exclude conglomerate effects (OuestFrance/Socpresse)
University Paris II Panthéon‑Assas
The operation By a letter dated 28 October 2005, the French Minister of Economy, Finance, and Employment, following the French Competition Council’s opinion dated 11 October 2005, authorised the acquisition by the Société d’investissement et de participations (SIPA” or “the party”) of three press (...)

The French Minister of Economy cleared in Phase II a merger in the press sector with structural and behavioural commitments, including bundling prohibition and termination of exclusive contract (France Antilles/Comareg)
French Competition Authority (Paris)
The operation In the case at hand, Vivendi Universal Publishing sold its entire equity interest in Comareg to France Antilles. Following the opinion given by the competition council, the Minister cleared the merger subject to structural and behavioral remedies. The market(s) The markets (...)

Procedures

The Netherlands Authority for Consumers and Markets issues market analysis on brewery contracts
European Commission (Brussels)
The Netherlands: The Netherlands Authority for Consumers and Markets issues Market Analysis on Brewery Contracts* On 6 June 2013, the Netherlands Authority for Consumers & Markets (ACM) issued a market analysis on the impact of arrangements between brewing companies and bar owners. ACM (...)

The French Competition Authority imposes a duty to respect competition law in the multi-brand gift cards sector (Accentiv’Kadéos)
EDHEC (Nice)
Summary ACCENTIV’KADEOS had to accept to give up exclusive dealing agreements with its affiliated partners to comply with competition law. Facts On March 2, 2010, TITRES CADEAUX asked the French Competition authority to take interim measures against ACCENTIV’KADEOS to prevent them from dealing (...)

The French Court of Cassation quashes a ruling of the Paris Court of Appeal which had exceptionally annulled an NCA decision for excessive duration of the investigation procedure (Luxury perfumes)
Vogel & Vogel
A new development has arisen in the luxury perfumes case. The Paris Court of Appeal, ruling on a referral back to it from the Court of Cassation, had exceptionally annulled a Competition Council (now Competition Authority) decision for excessive duration of the investigation procedure . This (...)

An Austrian Court declares behavioural commitments concerning broadcasting rights of the skiing world cup binding upon the public TV/radio provider and the Austrian skiing association (ÖRF / ÖSV)
European Court of Justice (Luxembourg)
At the request of the Austrian Federal Competition Authority (Bundeswettbewerbs-ehörde ; “BWB”), the Vienna High Court in competition matters (Oberlandesgericht Wien als Kartellgericht), by (unpublished) order of 18 January 2008, in Case 26 Kt 42/06, adopted on the basis of Sec 27(1) of the (...)

The Paris Court of Appeals receives observations - submitted for the first time to a national court since adoption of Reg. n° 1/2003 - from the European Commission (Garage Gremeau/Daimler Chrysler)
Freshfields Bruckhaus Deringer (Paris)
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Background According to Article 15(3) of Council Regulation (EC) n° 1/2003, of 16 December 2002, on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJEC L 1, 4 January 2003, pp. 1-25), the European Commission (the “Commission”) may submit (...)

A French Court concludes that the new motor vehicle block exemption regulation EC N° 1400/2002 amounts to a substantial change in the legal environment of car manufacturers justifying a complete reorganisation of distribution networks (Daimler-Chrysler/SO.PA.VI.A)
Freshfields Bruckhaus Deringer (Paris)
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Eversheds Sutherland (Paris)
SO.PA.VI.A had been entrusted by Daimler Chrysler France with the exclusive distribution of new motor vehicles of the Mercedes Benz trademark in the Pau/Tarbes area (i. e. south-west of France), pursuant to an agreement of 25 September 1996 complying with the previous block exemption regulation (...)

A Belgium Court of Appeal rules that quantity based price discrimination by beer supplier is not violating EC Reg. N° 1984/83 nor Art. 81.3 EC (Hermans and Daniel/Maloir)
Leuven University
In this case Ms. Hermans and Mr. Daniels appealed against the judgment held in first instance by the Commercial Court of Tongeren (handed down on 3 December 1999). The Commercial Court had found Ms. Hermans and Mr. Daniels liable for breach of contract and BF 510.000 (= € 12.642,57) damages were (...)

The Spanish Civil Supreme Court finds that an oil distribution agreement benefit from the exemption laid down by EC Reg. n° 1984/83 and awards damages (Gabai Oil/ Petróleos del Norte)
London School of Economics
On 18 July 1989, Gabai Oil, S.A. (hereinafter, “Gabai Oil”) and Petróleos del Norte, S. A. (“Petronor”) concluded an agreement for a period of 35 years regarding the distribution by the former of oil products supplied by the latter. Besides the non-compete obligation imposed upon Gabai Oil, Petronor (...)

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

Regulations

The Paris Court of first instance denies an airline company having an exclusive distribution model the right to prevent an online travel agency from selling its tickets (RyanAir / Opodo)
Google (Paris)
Summary The well known low-cost airline company RyanAir wishes to have control over online sales of its tickets. It has launched several lawsuits in Europe (in France, Germany, Ireland, Netherlands, Spain, Swiss) to protect its websites from “screen-scraping”. Screen-scraping consists in the (...)

The French Competition Authority issues an opinion on TV content access exclusivity offers by Internet service providers
French Competition Authority (Paris)
TV content access exclusivity offers by Internet service providers: The Autorité de la concurrence states its position*. Exclusive access must remain an exceptional solution, strictly limited in time and scope. Auto-distribution appears to be a satisfactory balancing solution, to the benefit (...)

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