Latest News issue: January 2019

Anticompetitive practices

The Portuguese Competition Authority fines an undertaking and its manager for bid-rigging in the sector of railway maintenance services (Sacyr Neopul)
Portuguese Competition Authority (Lisbon)
AdC sanctions an undertaking and its manager for anticompetitive practices in the sector of railway maintenance services.* The AdC imposed fines totalling 365,400 euros on Sacyr Neopul S.A., and its production manager, for participating in a horizontal agreement (cartel) that resulted in price (...)

The French Competition Authority fines several producers and wholesale distributors of liquid fertilizers for resale price maintenance (Canna France / GHE / Bertels / Biobizz / Hydro Factory / Hydro Logistique and CIS)
French Competition Authority (Paris)
The Autorité hands down fines for anticompetitive practices to several producers and wholesale distributors of liquid fertilisers.* Why are vertical pricing agreements forbidden in competition law? Competition law generally forbids horizontal (between competitors) and vertical agreements (...)

The EU Commission fines a clothing brand and retailer for anticompetitive agreements to block cross-border sales (Guess)
DG COMP (Brussels)
Antitrust: Commission fines Guess €40 million for anticompetitive agreements to block cross-border sales* The European Commission today fined the clothing company Guess €39 821 000 for restricting retailers from online advertising and selling cross-border to consumers in other Member States (...)

The EU Commission fines a clothing company close to €40 million for restricting cross-border trade (Guess)
Van Bael & Bellis (Brussels)
According to a press release issued on 17 December 2018, the European Commission (“Commission”) has fined the clothing company Guess € 39.8 million for infringing Article 101(1) Treaty on the Functioning of the European Union (“TFEU”) by imposing various types of resale restrictions on authorised (...)

The UK Competition and Markets Authority provisionally finds that three drainage product manufacturers participated to illegal cartel (FP McCann / Derbyshire-based Stanton Bonna Concrete / Somerset-based CPM Group)
British Competition Authority - CMA (London)
Two construction firms admit to illegal cartel* The CMA has provisionally found that 3 drainage product manufacturers broke competition law by co-ordinating prices for customers and sharing the market. Two of the businesses – Derbyshire-based Stanton Bonna Concrete Ltd and Somerset-based CPM (...)

The EU General Court rules that territorial exclusivity clauses in copyright licensing agreements raise competition concerns (Canal +)
Van Bael & Bellis (Brussels)
On 12 December 2018, the EU General Court (“GC” or “Court”) dismissed the application for annulment which Canal + SA (“Canal +”) had brought against a European Commission (“Commission”) decision that had made commitments offered by Paramount Pictures Ltd (“Paramount”) in the context of copyright (...)

The Hellenic Competition Authority decides to settle a case against two press distribution agencies for participating in horizontal agreements or/and concerted practices (Argos / Europi)
Hellenic Competition Authority (Athens)
Settlement case in the market of distribution of Greek press* By its unanimous Decision No. 669/2018, the Grand Chamber of the Hellenic Competition Commission (“HCC”) decided to settle a case against two press distribution agencies in Greece, ARGOS SA Press Distribution Agency (“ARGOS”) and (...)

The Board of Directors of the Egyptian Competition Authority invalidates clauses between a Big Tech company and its distributors for exclusive agreements considered as restrictive (Apple)
Egyptian Competition Authority (Cairo)
Unofficial convenience translation: In case of any discrepancy in this translation the Arabic wording only would prevail.* The Board of Directors of the Egyptian Competition Authority (“ECA”) has decided that Apple and its distributors have infringed the Egyptian Competition Law (“ECL”). The ECA (...)

The Hellenic Competition Authority settles a case against two undertakings for concluding anticompetitive agreements in the market for the production and marketing of dairy products (FrieslandCampina Hellas / Mandrekas)
Hellenic Competition Authority (Athens)
Settlement of market segmentation case in the market for the production and marketing of dairy products* By its unanimous Decision No. 668/2018, the Grand Chamber of the Hellenic Competition Commission (HCC) decided to settle a case against two (2) companies in the market for the production (...)

The Ankara 7th Administrative Court annuls the Turkish Competition Board’s dismissal decision regarding the allegations on the restriction of parallel imports in the market of energy system (Mastervolt / Eltesan)
ELIG Gürkaynak (Istanbul)
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ELIG Gürkaynak (Istanbul)
The Ankara 7th Administrative Court (“Court”) annulled the dismissal decision of the Turkish Competition Board (“Board”) concerning the allegations that Mastervolt International Holding B.V. (“Mastervolt”) and its exclusive distributor in Turkey, Artı Marin Elektrik Dış Tic. Ltd. Şti. (“Artı Marin”), (...)

The US DoJ reaches settlement with six broadcast television companies and prohibits share of competitive sentitive information in the television spot advertising market (Sinclair Broadcast Group / Raycom Media / Tribune Media Company / Meredith Corporation / Griffin Communications / Dreamcatcher Broadcasting)
McDermott Will & Emery (Washington)
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McDermott Will & Emery (Washington)
THE LATEST: DOJ Reaches Settlement with Six Broadcast Television Companies* The Department of Justice (DOJ) and six broadcast television companies reached settlements last week after the DOJ claimed that the companies shared competitively sensitive information that allowed the parties to alter (...)

The French Competition Authority carries out unannounced inspections in the sectors of engineering and technology consulting, IT services and software publishing
French Competition Authority (Paris)
The General Rapporteur of the Autorité de la concurrence indicates that unannounced inspections have been carried out yesterday in the sectors of engineering and technology consulting, IT services and software publishing* Following authorization from the liberty and custody judge, the (...)

The EU Commission fines consumer electronics manufacturers €111 Million for online pricing restrictions (Asus / Denon / Marantz / Philips / Pioneer)
Cooley (London)
European Commission Fines Consumer Electronics Manufacturers €111 Million for Online Pricing Restrictions* On 24 July 2018, the European Commission announced that it had fined four consumer electronics manufacturers – Asus, Denon & Marantz, Philips and Pioneer – a total of €111 million (...)

Unilateral Practices

The EU Commission accepts commitments from a company to settle an investigation into conduct affecting the German and Danish electricity markets (TenneT)
Van Bael & Bellis (Brussels)
On 7 December 2018, the European Commission (“Commission”) adopted a decision accepting a number of commitments from TenneT to address the Commission’s competition concerns regarding TenneT’s conduct that allegedly limited southward capacity at the electricity interconnector between Western Denmark (...)

The Italian Competition Authority fines a Big Tech Company 10 Million euros for unfair commercial practices using its subscribers data for commercial purposes (Facebook)
Italian Competition Authority (Rome)
Facebook fined 10 million Euros by the ICA for unfair commercial practices for using its subscribers’ data for commercial purposes On 29 November 2018 the Italian Competition Authority (ICA), closed the investigation opened last April for alleged violations of the Consumer Code by Facebook (...)

The Egyptian Economic Court fines the President and the Secretary General of a sport association for abuse of dominance regarding an exclusive licensing agreement (Confederation of African Football)
Egyptian Competition Authority (Cairo)
Economic Court has Fined Mr. Isaa Hayatou (President of CAF) and Mr. Hicham El Amrani (Secretary General of CAF) 500 Million EGP Each*
 Background of the case: 
January 3rd 2017, the Egyptian Competition Authority (ECA) requested the Prosecutor’s Office to press criminal charges pursuant to (...)

The Turkish Competition Authority holds that online sales channels exerts competitive pressure in traditional sales channels in the market of sales of books (Doğan Müzik Kitap Mağazacılık ve Pazarlama A.Ş.)
ACTECON (Istanbul)
Should Traditional and Online Sales Channels Constitute Separate Relevant Markets? (The TCA’s D&R Decision) On November 23, 2018, the Turkish Competition Authority (“TCA”) published its reasoned decision (“D&R Decision”) concerning the investigation conducted against Doğan Müzik Kitap (...)

The Turkish Competition Authority fines a consumer electronics company for resale price maintenance in online sales (Sony)
ACTECON (Istanbul)
On 22 November 2018 the Turkish Competition Authority (“TCA”) completed its investigation and decided to sanction Sony Eurasia Pazarlama A.Ş. (“Sony”) for its involvement in imposition of fixed or minimum resale prices maintenance (“RPM”) on online retailers. Sony should be faced with an (...)

The US DoJ settles a lawsuit regarding a hospital system anti-steering provisions againts health plans (Charlotte-Mecklenburg Hospital Authority)
Sheppard Mullin (Century City)
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Sheppard Mullin (San Francisco)
U.S. Department of Justice Settles Anti-Steering Suit Against Hospital System; First Such Settlement After Amex SCOTUS Decision* On November 15, 2018, the Antitrust Division of the U.S. Department of Justice settled a two-and-a-half year long lawsuit against Atrium Health, a North Carolina (...)

The US DoJ reaches a settlement with a healthcare system related to provisions in a contract between the health system and commercial insurers (Charlotte Mecklenburg Hospital Authority)
McDermott Will & Emery (Chicago)
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McDermott Will & Emery (Washington)
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McDermott Will & Emery (Chicago)
THE LATEST: DOJ Announces Settlement with Carolinas Health System (Atrium Health) After Two Years of Litigation* The Department of Justice (DOJ) announced last week that it and the State of North Carolina have reached a settlement with Carolinas Healthcare System / Atrium Health relating to (...)

The UK Court of Appeal upholds a decision qualifying an essential patent offer to be FRAND (Huawei / Unwired Planet International)
Jindal Global University (Sonipat)
UK COURT OF APPEAL UPHOLDS FRAND INJUNCTION* Last week, the UK Court of Appeal upheld the findings of the High Court in an important case regarding standard essential patents (SEPs). Of particular significance, the Court of Appeal upheld the finding that the defendant, an implementer of SEPs, (...)

The EU Commission fines €4.34 billion a Big Tech company for illegal practices (Google)
International Center for Law & Economics (Portland)
The EU’s Google Android antitrust decision falls prey to the nirvana fallacy* Today the European Commission launched its latest salvo against Google, issuing a decision in its three-year antitrust investigation into the company’s agreements for distribution of the Android mobile operating (...)

The EU Commission imposes a record fine to a Big Tech company for restrictions on smartphone manufacturers and mobile network operators (Google)
Wolters Kluwer (Chicago)
Record Google fine over restrictions on Android devices draws strong reactions* A record €4.34 billion (approximately $5 billion) fine was imposed on Google last week by the European Commission (EC) in response to the company’s imposition of restrictions on Android device manufacturers and (...)

Mergers

The French Competition Authority clears the creation of a joint undertaking subject to remedies in VAT refund services markets (Global Blue / Planet Payment)
French Competition Authority (Paris)
The Autorité de la concurrence clears, subject to conditions, the creation of the Cash Paris Tax Refund company by Global Blue and Planet Payment* A transaction referred by the European Commission On 21 August 2018, the European Commission referred to the Autorité de la concurrence the review (...)

The Hungarian Competition Authority fines a company for gun-jumping in the market of technical building services (ETS / TGS Engineering)
Hungarian Competition Authority (Budapest)
GVH once again imposes a fine for the implementation of a concentration prior to authorisation* The Hungarian Competition Authority (Gazdasági Versenyhivatal, hereinafter GVH) imposed a fine for the seventh time for the implementation of a concentration prior to authorisation by the GVH. The (...)

The EU Commission opens an in-depth investigation to assess a merger in telecoms and TV services market (Liberty Global / Vodafone)
DG COMP (Brussels)
Mergers: Commission opens in-depth investigation into proposed acquisition by Vodafone of Liberty Global’s business in Czechia, Germany, Hungary and Romania* The European Commission has opened an in-depth investigation to assess Vodafone’s proposed acquisition of Liberty Global’s business in (...)

The Czech Competition Authority clears a merger subject to remedies in the soft drink market (Pepsico / KMV)
Czech Competition Authority (Brno)
KMV is allowed to take control over part of Pepsi business, subject to commitments* The Office for the Protection of Competition issued on 30 October 2018 a decision approving the concentration between soft drinks producers, subject to fulfilment of several structural commitments. The (...)

The US DoJ conditionally approves a merger in the healthcare industry (CVS / Aetna)
International Center for Law & Economics (Portland)
The DOJ’s approval of the CVS/Aetna Merger and vertical innovation by incumbents* Last week, the DOJ cleared the merger of CVS Health and Aetna (conditional on Aetna’s divesting its Medicare Part D business), a merger that, as I previously noted at a House Judiciary hearing, “presents a creative (...)

The Egyptian Competition Authority sends official notice and request of information to the two ride-hailing companies of Egypt (Uber / Careem)
Egyptian Competition Authority (Cairo)
Attempted merger agreement between the two main competitors in the ridesharing market in Egypt, Uber Group and Careem Group
* Based on several reported information concerning an attempted merger agreement between the two main competitors in the ridesharing market in Egypt, Uber Group and Careem (...)

State Aid

The EU Commission finds that a Romanian petrochemical company received around €335 million of incompatible aid (Oltchim)
DG COMP (Brussels)
State aid: Romania needs to recover incompatible aid from petrochemical company Oltchim* The European Commission has found that Romanian petrochemical company Oltchim received around €335 million of incompatible aid from Romania, since the company’s failed privatisation in September 2012. (...)

The EU Commission authorizes Greece under EU State aid rules to extend by 20 years the concession for the operation of the Athens International Airport
DG COMP (Brussels)
State aid: Commission finds no aid in €1.1 billion extension of Athens International Airport concession* The European Commission has authorised Greece, under EU State aid rules, to extend by 20 years the concession granted to AIA to operate Athens International Airport. The fee AIA will pay for (...)

The EU Commission approves under EU State aid rules a measure to promote shift of freight transport from road to rail in Germany
DG COMP (Brussels)
State aid: Commission approves €350 million per year in public funding to promote shift of freight transport from road to rail in Germany* The European Commission has approved under EU State aid rules a German aid scheme to promote the shift of freight traffic from road to rail. The scheme will (...)

The EU Commission finds that the Luxembourg authorities’ non-taxation of a fast-food franchising relies on a correct interpretation of the Luxembourg-US Double Tax Treaty and therefore does not constitute illegal State aid (McDonald’s)
Liège University - IEJE
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Liège University - IEJE
1. Parties McDonald’s Corporation and its subsidiaries franchise and operate tens of thousands of fast food restaurants worldwide. One of the subsidiaries is McD Europe Franchising, S.à.r.l. That company is a Luxembourg tax resident and following the example of the Commission, we will refer to (...)

Procedures

The EU Court of Justice sets aside General Court judgments granting damages for excessively long judicial proceedings (Gascogne / Kendrion / Plasticos Españoles)
Van Bael & Bellis (Brussels)
On 13 December 2018, the Court of Justice of the European Union (“ECJ”) delivered three judgments on separate appeals brought against judgments of the General Court (“GC”) by Gascogne Sack Deutschland (“Gascogne”), Kendrion and Plasticos Españoles (together with its parent company Armando Álvarez) in (...)

The EU Commission publishes guidelines to facilitate access to antitrust files
Van Bael & Bellis (Brussels)
On 12 December 2018, the European Commission (“Commission”) published two new guidance documents facilitating access to the Commission’s files by undertakings subject to antitrust proceedings. These documents are part of the Commission’s efforts to increase the transparency of competition (...)

The US Court of Appeals for the Seventh Circuit upholds dismissal of a class action against containerboard manufacturers for conspiring to increase prices and reduce output (Kleen Products / Georgia‐Pacific / West Rock CP)
Wolters Kluwer (Riverwoods)
Seventh Circuit Identifies Difficulties in Challenging* In a decision pondering the adequacy of the Sherman Act to protect consumers from consciously parallel conduct among oligopolists, the U.S. Court of Appeals in Chicago upheld dismissal of a class action against containerboard (...)

The EU General Court confirms that competition liability may only exceptionally be attributed by the criterion of economic continuity (Coveris Rigid France)
Desogus Law Office (Cagliari)
Adjudicating an appeal lodged by a cartelist that then divested its business in the Coveris case, the General Court of the EU (GC) held that the European Commission correctly grounded the competition liability of the appellant on the general principle of personal liability instead of the (...)

The EU General Court confirms that successor liability for EU competition law infringements may only exceptionally be based on economic continuity (Coveris Rigid France)
Baker Botts (Brussels)
In December 2018, the EU General Court (the “General Court”) dismissed the action for annulment lodged by Coveris Rigid France (“Coveris”) against a decision of the European Commission (the “Commission”) that held Coveris liable for its participation in the retail food packaging cartel. The judgment (...)

The US Supreme Court hears oral arguments to determine whether iPhone App Store customers are Apple direct purchasers in order to pursue the Big Tech monopoly claims (Apple / Pepper)
Wolters Kluwer (Chicago)
Will High Court allow consumers to pursue Apple Monopoly claims?* The Supreme Court heard oral arguments on November 26 in a suit alleging that the Ninth Circuit erred in holding that iPhone App Store customers were direct purchasers of those apps and had standing to sue Apple for the (...)

The EU Court of Justice holds that a jurisdiction clause is not excluded when it does not expressly refer to disputes relating to liability resulting from an abuse of dominant position (Apple / MGA)
McDermott Will & Emery (Paris)
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McDermott Will & Emery (Paris)
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McDermott Will & Emery (Brussels)
Application of Jurisdiction Clauses to Competition Damages Actions Depends on Cause of Action* Summary The European Court of Justice (ECJ) recently ruled that a jurisdiction clause does not need to refer expressly to disputes arising from a breach of competition law where damages are claimed (...)

The Egyptian Competition Authority imposes interim measures on the two ride-hailing applications available in Egypt to preserve the competitive structure of the market (Uber / Careem)
Egyptian Competition Authority (Cairo)
Egyptian Competition Authority (ECA) imposes Measures on Uber and Careem to regulate competition between them and safeguard the competitive structure of the market.
* Dr. Amir Nabil, Chairman of the Egyptian Competition Authority, said: “Uber and Careem are the only ride-hailing applications (...)

The EU Commission looks into an online platform’s use of online sales data (Amazon)
International Center for Law & Economics (Portland)
The Amazon investigation and Europe’s "Big Tech" Crusade* The dust has barely settled on the European Commission’s record-breaking €4.3 Billion Google Android fine, but already the European Commission is gearing up for its next high-profile case. Last month, Margrethe Vestager dropped a (...)

Regulatory

The Portuguese Competition Authority issues its final version of the Issues Paper “Technological Innovation and Competition in the Financial Sector in Portugal”
Portuguese Competition Authority (Lisbon)
The AdC has published the final version of the Issues Paper “Technological Innovation and Competition in the Financial Sector in Portugal”, in which warns of the risks in PSD2’s implementation* The AdC has approved the final version of the Issues Paper “Technological Innovation and Competition in (...)

Public sector

The Hungarian Competition Authority fines four water welling companies for bid rigging (Vikuv Vízkutató és Fúró Zrt. / Aquazit Szolgáltató Kft. / Drillingwater Kft. és a Geo-Sivo Építőipari / Környezetvédelmi Tervező és Kivitelező Kft)
Hungarian Competition Authority (Budapest)
Total fine of more than 100 million forints imposed on well drilling companies for participation in a cartel* The Hungarian Competition Authority (Gazdasági Versenyhivatal, GVH) imposed fines amounting to a total of 105 million forints (0.33 million EUR) on four water welling companies for (...)

The City Court of Odense acquits construction companies in bid rigging case (Jorton / H. Skjøde Knudsen)
Danish Competition and Consumer Authority (Copenhagen)
Denmark: City Court acquits construction companies in bid rigging case The City Court of Odense acquitted the construction companies Jorton A/S and H. Skjøde Knudsen A/S as well as three members of the management in a bid rigging case. On 12 December 2018, the City Court of Odense acquitted (...)

The Quebec Court of Appeal sentences to prison individuals found guilty of offenses in relation with bid-rigging in public construction contracts (Fedele)
Steve Szentesi Law Corporation (Vancouver)
Quebec Court of Appeal Ruling Signals that Bid-Rigging is a Serious Offence Warranting Imprisonment* A recent decision by the Quebec Court of Appeal in R c. Fedele, 2018 CarswellQue 10342 (English language summary) sends a strong signal that bid-rigging offences, particularly in respect of the (...)

The EU Court of Justice decides that the three years of maximum exclusion for cartel members from public tenders starts to run with the decision of the investigating anti-trust authority (Vossloh Laeis / Stadtwerke München)
Noerr (Berlin)
Exclusion of Cartel Members from Public Tenders – ECJ to Clarify Key Issues* Sanctions for participating in cartels are manifold: fines and damages are feared foremost, followed by reputation losses. Another painful consequence is often overlooked at first glance: exclusion from public tenders (...)

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