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Foreword
An antitrust fable - A tale of predation
From competition law to competition of laws
Interview
Jacques Steenbergen: A Counsel for the Belgium NCA
William Kovacic: A new Chairman for the FTC
Trends
Resale price regulation: Leegin and much more
Law & Economics
Addressing buyer power in merger control
How to remedy anticompetitive effects of vertical mergers? Two recent French cases
Structural merger remedies: An economic point of view
The non-horizontal merger guidelines in practice
International
Honk-Kong: Overview of the May 2008 proposals for a competition law
Merger control in China as of August 1st, 2008: Still a long way to go
Legal Practice
Legal privilege: An ethics issue
What is the extent of the legal privilege?
The e-Competitions Antitrust Encyclopedia
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Conference: Small economies and competition policy - A fair deal?
Gabriel Bleser - Jacques Steenbergen - Michal S. Gal - Charles Webb -
Cooperation or competition ? Relationships between the NCA and the sectoral agencies
Didier Theophile - Étienne Renaudeau -
New EC fines guidelines: Overview of the first cases (2006-2008)
Anne Krenzer -
Performance of national competition authorities: A method for assessment
Jorge Rodrigues - Paulo Gonçalves - Abel Mateus -
Pharmaceutical parallel trade: A controversial EC approach
Péter Sükösd -
Price discrimination and negociability of retail provisions: An economic analysis
Etienne Pfister -
State Aid Colloquium, 14 March 2008
Jacques Derenne - David Spector - Christopher Bellamy - Mario Monti - Jean-Yves Chérot - Marie-Dominique Hagelsteen - Jean-Louis Colson - Agnès Maitrepierre - Jean-Marc Sauvé - Jean-Claude Bonichot - Pierre-François Racine - Carine Soulay - Amandine Zelenko - Jacques Biancarelli - Philippe Martin - Christian Lambert - Marie-Christine Lepetit - Eric Ginter - Alain Ménéménis - Guylain Clamour - Laurent Richer - Anne Fort - François Tanguy - Jean-Christophe Moraud - Emmanuel Glaser - Denys de Bechillon -
The Economic Modernisation Act: An other step in the endless regulation of trade negociations in France
Léna Sersiron - Mireille Dany
Anticompetitive Practices
- Compliance - Civil sanctions: The French NCA welcomes the compliance and indirectly takes part to the discussion concerning civil sanctions in case of anticompetitive practices (Entretien courant des locaux)
- Price fixing - Leniency: The French NCA confirms the duality of the standard of proof in case of anticompetitive meetings and put into force for the 3rd time its leniency program (Production du contreplaqué)
- Agriculture - Professional associations: The French Competition Council regards favorably the setting up of associations of producers, subject to conditions, but opposes any mechanism of price fixing and suggests alternative means to reduce price volatility (Opinion)
- Exclusive supply - Fines: The Paris Court of appeal upholds most of the Competition Council decision sanctioning the practices of several cement manufacturers in Corsica, but significantly reduces fines imposed on two producers and annuls the decision with respect to two other producers (Lafarge Ciments)
- Proof: The French Cour de cassation validates the evidence method applied to vertical agreements (Pre-recorded video tapes)
- Fine mitigating: The CFI upholds most of the Commission’s décision in the sorbates cartel, but states that the Commission failed to qualify leadership role and infringed the principle of good administration and equal treatment and therefore reduces the fine by € 25 M (Hoechst c/ Commission)
- Fine setting: The ECJ confirms the CFI judgment in the methionine cartel case (Evonik Degussa)
- National regulations: The ECJ confirms its Arduino and Cipolla case-law and rules that Articles 81 EC and 10 EC combined do not preclude the Italian law prohibiting derogations from the minimum limits for the lawyer’s fees (Hospital Consulting / Esaote)
- Resale prices: The French Court of Cassation confirms the Paris Court of appeal ruling (Vidéocassettes préenregistrées)
- Professional associations - Tarifs: The French Competition Council sanctions 7 union doctors for having agreed on the higher rate for consultations (Médecins spécialistes de secteur 1)
- Long term exclusivity: The French Competition Council issues a study on exclusivity and long term contracts
- Sanctions: The Competition Council applies the settlement procedure to an anticompetitive cartel on a local industrial cleaning market (Entretien courant des locaux)
Unilateral Practices
- Essential facilities: The French NCA rejects the request for interim measures as well as the referral of a specialised publisher regarding the qualification as essential facilities of points of sales located in places of interest (Specialised publishing sector)
- Confusion between public service and commercial operations: The French NCA strikes commercial practices of a public funeral operator causing confusion among consumers as to the distinction between provision of public service and commercial operations (Public funeral operator sector)
- Predatory pricing: The French judiciary Supreme Court quashes the Paris Court of appeal’s decision on the incremental costs analysis in the Vendee sea crossing with express passenger boats (Vedettes inter-îles vendéennes)
- Exclusive distribution - Bundling: The French NCA decides that, as exclusivity and bundling abuses are not characterized in the catch up TV partnership, the definition of relevant markets in a budding sector is useless (Catch-up TV)
- Fidelity rebates: The Paris Court of appeal upholds qualification of collective entity of the duopoly Lafarge/Vicat and anticompetitive effect of fidelity rebates according to the quantities required but reduces fines (Corsican Cement)
- Essential facilities: The Competition Council decides on the practice in the publishing and sale of tourist studies (Monographies touristiques)
- Abuse of a dominant position: The Paris Court of appeals calls for greater care and vigilance to be exercised when assessing “predation by reputation” claims (GlaxoSmithKline France)
Restrictive Practices
- Restrictive practices: Publication of the 2006-2007 report of civil matter and State prosecution in the field of restrictive practices (Montpellier Law Faculty Report)
- Sudden breaking off of established commercial relationships: The commercial chamber of the French Commercial Court and the Montpellier Court of appeals render decision on the sudden breaking of commercial relationship (Tramico c/ Decasport)
- Modernisation of the Economy Act: An up-date before adoption of the law (Loi de Modernisation de l’économie)
- Code of good practices: The CEPC Commission supports a code of good practices between the professional of insurance and automobile (Good practices between the professional of insurance and automobile)
- Break of commercial relationships: The Douai Court of appeals rules that a sudden modification of tariffs and payment conditions may be sanctioned under Article L. 442-6, I, 5° of the Commercial code (GMBH/Agrotronix)
- Break of commercial relationship: The Versailles Court of appeals holds that a commercial relationship can be “established” within the meaning of Article L. 442-6 of the Commercial Code even if there are no permanent and ongoing dealings between the parties (Partouche)
- Unfair practices: The Versailles Court of appeals uses the “sufficient, substantial and significant nexus” criterion to determine the jurisdiction of French courts over suits involving unfair competition online
- Incorrect invoices: The Cour de cassation holds that companies that issued incorrect invoices found guilty of forgery (Compagnie générale de conserves)
Mergers
- Clearance with remedies: The French Minisiter clears in phase I a merger with remedies in the pay-TV sector (SFR/Neuf Cegetel)
- Clearance with remedies: The French Minister clears two mergers in the retail sectors under conditions which could lead to a freeze or reduction of capacities, in order to lower the barriers to entry resulting from the current legislation on retail zoning (Vivarte/Défi Mode)
- Merger’s mavericks: The French Minister sets up the mavericks’ competitive assesment (Groupe Épis-Centre/Celbert)
- EC Phase II merger clearance: The EC Comission clears a merger in Phase II without condition, in spite of a very high share of supply in the UK, pursuant to an in-depth analysis of geographic market definition (Ineos/Kerling)
State Aids
- Right of third parties: The ECJ clarifies the right of the parties concerned to participate in the formal State aid investigation procedure (Ferriere Nord SpA)
- Pearle case law: The French Supreme admninistrative Court issues a questionable application of the Pearle case law (Coopérative Cooperl Hunaudaye and Fédération Syndigel)
- Public broadcasters : The CFI rules that the Commission did not provide sufficient proof to substantiate certain of its conclusions and has breached its obligation to carry out a diligent and impartial investigation (Sociedade Independente de Comunicação)
- Recovery obligation: The ECJ confirms that a Member State, which has not challenged a negative decision, may not raise the illegality of this decision as a plea of defence in an action for failure to fulfil its obligations lodged by the Commission on the grounds of the lack of enforcement of the decision (Salzgitter AG)
- Preliminary phase: The ECJ confirms that the legality of a decision not to raise objections against a State aid must be appraised in light of the information available to the Commission at the time of the examination procedure (Nuova Agricast Srl/Ministero delle Attività Produttive)
- Public guarantees: The new Notice foreseen in the State Aid Action Plan is part of the EC Commission’s efforts to clarify and simplify State aid rules (Treaty to State aid in the form of guarantees)
Procedures
- Art. 11.3 EC Reg. 1/2003: The French Competition Council rules for the first time on article 11, § 3 of regulation 1/2003 (Wood industry)
- Leniency: The French Competition Council has adopted its third decision applying the leniency procedure (Wood industry)
- Withdrawal of the benefit of a block exemption: The Paris commercial Tribunal recalls that a national court has no jurisdiction to withdraw the benefit of a block exemption regulation (Turbo Europe c/Peugeot et Renault)
- Non-contest procedure : The French Competition Council stabilizes its policy for the application of the non-contest procedure (Industrial cleaning)
- Hardcore restriction: The Paris Court of appeals rules on the consequences of a former decision by the competition authority on its own procedure (Pacific Création)
- Prescription - Interruption - Criminal antitrust proceedings: The Paris Court of appeals upholds that any measure which interrupt prescription of criminal proceedings interrupt in the same time prescription of administrative proceedings sanctioning anticompetitive behaviour (Public procurement contracts in the Ile-de-France area)
- Criminal antitrust proceedings: The Paris Court of appeals rules on communication of documents on the basis of Art. L 463-5 C. com. (Secondary Schools in the Ile-de-France region)
- Antitrust criminal proceedings: The criminal chamber of the French Cour de cassation adopts a variable approach with regards to prescription on the basis of Art. L 420-6 C. com. (SNF c/Cytec Industries)
- Evidence: The commercial chamber of the French Cour de cassation rules that sound recordings carried out without the knowledge of the author of the sound is unfair means of evidence (Sony France et Philips France)
- Undertakings/Remedies: The EC Commission and the French competition authority invite interested parties to submit comments on proposed commitments (Monographies touristiques)
- Breach of a seal: The EC Commission sanctions a breach of a seal for the first time (Energie AG)
- Statutory limitation - Reasonable time limit: The CFI clarifies relationship between statutory limitation and the Commission’s duty to conclude investigations within a reasonable time (Compagnie maritime belge)
- ECSC Treaty : The ECJ provides clarification on interplay between EC and ECSC State aid rules (Commission c/Salzgitter)
- Equal treatment - State aids: The ECJ holds lawful, on the basis of the principle of equal treatment a Commission’s decision not to raise objections a State aid regime (Nuova Agricast)
- Fines - Art. 15.2 Reg. 17: The ECJ confirms its prior case law on the calculation of fines under Art. 15(2) of Regulation 17 (Evonik Degussa c/Commission)
- Seizure: The judge of freedoms and detention of Nanterre holds that the DNECCRF’s “selective sorting” obligation also applies to seizures of emails during onsite visits (Société Eco-emballages)
- Leniency: The Competition Council applies for the third time the leniency procedure and sanctions an anticompetitive cartel in the production of plywood (Production du contreplaqué)
- Unfair evidence: The Cour de cassation rules that unfair evidences are not admissible in competition law (Sony/Philips)
Regulatory
- Energy: The European Council takes side on effective separation of supply and production activities from network operations (Official Position of the European Council)
- Incremental costs: The French supreme judiciary Court questions the scope of public services (Vedettes vendéennes)
- Air transport - Slots: The European Commission decides not to oppose anymore to the selling of airport slots (EC Comm.)
- Electronic communications: French regulation on the roll-out of new generation networks on the verge of being adopted (Very high speed broadband access fiber networks)
- Electronic communications: The EC Commission consults on bringing down mobile phone tariffs in Europe : The art of harmonizing regulatory practices and regulating the NRAs (Greater consistency...)
- Electronic communications: The French NCA issues an opinon on fix telephony: A small step towards deregulation (Fix telephony)
Public Sector
- Exclusive right: The French State Council applies for an ECJ preliminary ruling on the compatibility with EU law of horse betting company’s exclusive right (Zeturf - PMU)
- Public sector: The French competition authority takes sides in favour of unbundling of vocational training (Fédération de la formation professionnelle)
- Agriculture: The French competition authority scrutinises the new organisation of fruits and vegetables market (Fruits and vegetables market)
- Funeral services: The French competition authority sanctions an abuse of domination in funeral services (Funeral services)
- Housing aid scheme: The French competition authority rejects a complaint lodged against the aid scheme in favour of housing (Executive Relocations)
- Regulators’ disciplinary power: The French State Council holds corporation, in the case of financial market regulation, liable for fault when its employee causes wrongdoing if the corporation is not able to demonstrate the efficiency of its internal control and countermeasure procedures (Tradition Securities et Futures)
- Labour agreements: The French State Council rules that, while legalizing labour agreements, Government regulation should combine social interest and the development of competition (Société Nouvelle de Remorquage du Havre)
- Airport fees: The French State Council rules that the airport fees should be equivalent to costs and can be adjusted only according to obvious differences and within an objective limits (Federal Express, Ryanair, Air France)
- Public procurement scope: The French State Council rules that “subsidies” paid by a local government to get vocational training are public procurement contracts when they are paid as counterpart for a service defines by the government, whatever their contractual definition (La Réunion)
- Public procurement: A French report proposes measures to ease the use of various public/private partnerships schemes and their economic assessment (Complex public procurement)
- Energy: The latest report from the EC Commission on progress in creating the internal gas and electricity market highlights the existence of major barriers to the efficient functioning of the market (Internal gas and electricity market)
- Airport slots: The EC Commission issues a communication on precision on common rules for the allocation of slots at Community airports (COM (2008) 227)
Distribution
- Misleading advertising: The Colmar Court of appeals annuls the interim decision having suspended an advertising campaign in favour of distribution of medicines by the retail distribution (Univers Pharmacie/GALEC)
- Franchising: The French Supreme Court holds that a franchising contract is an intuitu personae contract in favor of the franchisee (Diapar / Prodim - Lesage / Casino)
- Distance reverse auctions-Excluded products: A Decree provides with the list of agricultural products excluded from distance reverse auctions (Décret n°2008-535)
- Commercial cooperation - Action of the Minister: The Colmar Court of appeals confirms the case law having considered admissible action of the Minister of the economy in lieu of the retail distributor against fake commercial cooperation agreements
- Selective distribution: The Paris commercial court rules that a "web host" who distributes products outside a network is liable on the basis of unfair competition (Parfums Christian Dior, Kenzo Parfum, Parfums Givenchy, Guerlain/eBay)
| N° 3-2008 |
