April 2005

Anticompetitive practices

The French Competition Authority rejects a complaint in the market of sale of DVD dispensers on the basis of both national restrictive and unilateral provisions with a reference to EC Regulation No. 2790/1999 on vertical agreements (Cinemat)
Gide Loyrette Nouel (Brussels)
On 23rd May 2001 a case has been submitted by the Syndicat National des Exploitants de Distributeurs Automatiques de Vidéocassettes et de DVD (SNEDAVI: national association of the video cassette and DVD dispenser operators) to the French Competition Council regarding the practices used by a (...)

The German Mannheim Regional Court decides on the right to claim against a vertically integrated cartelist and the standard of proof for antitrust damages in a follow on-suit (Carbonless paper cartel)
Eberhard Karls University of Tübingen
The Regional Court Mannheim decided in its judgment of 29 April 2005 on the right to claim against a vertically integrated cartelist and the standard of proof for antitrust damages in a follow on-suit after a final decision of the EC Commission (Carbonless paper) . Background and Context of (...)

The Irish Competition Authority agrees a settlement with a medical professional association in High Court proceedings on possible violation of Art. 81 EC (VHI DeCare/Irish Dental Association)
London School of Economics (London)
Irish National Competition Authority, 28 April 2005, Irish Dental Association (Press relase) On April 28, 2005 the Irish High Court action initiated by the National Competition Authority (henceforth “NCA”) against the Irish Dental Association (hereinafter “IDA”) was settled. The NCA alleged that (...)

The Italian Competition Authority considers that hardcore restrictions may have the effect of hindering trade between member States and opens proceedings against five manufacturers of marine and yacht coatings for alleged breach of Art. 81 EC (Vernici Marine)
London School of Economics (London)
On 13 August 2003, a complaint was lodged before the Autorità Garante della Concorrenza e del Mercato (hereinafter, “AGCM”). The complainant alleged the existence of an anticompetitive agreement reached between several manufactures of marine and yacht coatings : Boat - Boero Attiva Marine and (...)

An Italian Court states that the information exchange organised among insurance companies has no effect on competition (San Paolo IMI Wealth Management)
Studio Legale DDPV (Rome)
The Italian national jurisdiction (Tribunale Amministrativo Regionale del Lazio - the “TAR”) annuled a decision of the Italian national competition authority (the “Authority”) concerning an alleged infringement of art 2 of Italian Antitrust Law (a provision similar to art 81 EC). In June 2003, two (...)

The Madrid Commercial Court finds a distribution agreement to be null and void and decides that the claimant is not entitled to recover the sums paid by virtue of a contract (Aloyas / Repsol)
London School of Economics (London)
Repsol Comercial de Productos Petrolíferos, S.A. (hereinafter, “Repsol”) and Estación de Servicio Aloyas, S.L., S.A. (“Aloyas”) concluded on 14 March 1995 a 10-year contract concerning the distribution of oil products. The parties agreed that the contract was an agency one. The term “agent” was even (...)

A Portuguese court states that a beer distribution agreement does not appreciably restrict competition on the basis of Art. 81 EC and inflicts a fine of € 77,715 (Centralcer/Nascimento)
London School of Economics (London)
Centralcer - Central de Cervejas, S.A. (one of the main beer manufacturers in Portugal, hereinafter referred to as ‘the supplier’) signed in 1997 a single-branding agreement with Carmo José Augusto Nascimento (hereinafter, ‘the purchaser’). It was agreed between the parties that the contract would (...)

The Spanish Supreme Court requests a preliminary ruling to an exchange of information agreement between financial institutions in relation to clients solvency and compliance (Asnef-Equifax)
Sheppard, Mullin, Richter & Hampton (Brussels)
Eli Lilly (Madrid)
This Order has been adopted by the Tribunal Supremo (“TS”) in the appeal lodged against a judgment of the Audiencia Nacional (“AN”) which decided on the appeal against a decision adopted by the Tribunal de Defensa de la Competencia (“TDC”) granting an individual exemption to an agreement on (...)

The Hellenic Competition Commission fines the Trade Association of Greek Super Markets and seven super market chains for breach of Art. 81.1 EC due to a decision of an association of undertakings (SESME)
Hellenic Institute of International and Foreign Law (Athens)
Hellenic Competition Commission (Elliniki Epitropi Antagonismou), 1st April 2005, Decision 277/IV/2005, SESME Hellenic Competition Commission (Elliniki Epitropi Antagonismou), 5 July 2005, Decision 284/IV/2005, SESME In October 2001, the Trade Association of Greek Super Markets (Syndesmos (...)

Unilateral Practices

The Danish Competition Authority approves a new prices scheme for postal services after having decided that the postal incumbent had abused its dominant position through offering discriminatory prices and implementing an illegitimate fidelity rebate scheme (Post Danmark)
Catholic University of Louvain
On 23 February 2005, the Danish Competition Council approved the newly instituted pricing scheme of Post Danmark in relation to the future prices for distribution of un-addressed items. This new and revised pricing scheme follows a decision of 29 September 2004 by the Danish Competition (...)

The Danish Competition Authority holds that a professional association had abused its dominant position under both Art. 82 EC and national competition provisions (Rørforeningen)
McDermott Will & Emery (Brussels)
Rorforeningen is an association of Danish wholesalers of plumbing and heating products. All the major wholesalers in Denmark are represented through Rorforeningen. The association carries out a range of activities but the one in casu to which the abuse pertains involved the undertaking of a (...)

The French Competition Authority accepts the commitments of the authors’ rights collective management society to address competition concerns in this sector (Société des auteurs et compositeurs dramatiques)
French Competition Authority (Paris)
Authors can now separate the rights they entrust to the SACD (Society of Dramatic Authors and Composers). The Conseil de la concurrence accepts the SACD’s commitments and decides to close the case.* In an action disputed against the Société des auteurs et compositeurs dramatiques (SACD) , the (...)

The Spanish Telecommunications Authority closes proceedings for interim relief considering that Teléfonica’s commercial strategy for the launch of its pay-TV services is not a tying practice within the meaning of Art. 82 EC (Servicio Imagenio)
London School of Economics (London)
Telefónica de España, S.A.U. (hereinafter, “TESAU”) is a 100% owned subsidiary of Grupo Telefónica, the Spanish incumbent in the telecommunications sector. Under the commercial name “Línea Imagenio”, TESAU provides broadband Internet access and pay-TV services, including video-on-demand as well as (...)

The Polish Competition Authority condemns a producer of paid TV programs for abusing of its dominant position in the licensing agreement with the cable TV operator (Automatic Serwis / TVN 24)
French National Research Agency - ANR (Paris)
Orrick, Herrington & Sutcliffe (Washington)
President of the Office of Competition and Consumer Protection (Prezydent Urzedu Ochrony Konkurencji i Konsumentów), April 15th, 2005, Decision n° RBG-15/2005 concerning TVN 24 Sp. z o.o.’ s abuse of the dominant position on the Polish language paid channel markets of 24h news and weather (Press (...)

The German Higher Regional Court of Düsseldorf confirms a decision of the Competition Authority and adds an additional milestone in the EC recent decisions concerning consolidators in the postal sector (Deutsche Post)
Background Deutsche Post AG (DPAG) offers rebates on the postage for individual customers sending large bulks of mail. Concerning letters weighing less than 100 grams - for which DPAG still holds a legal monopoly - DPAG refused to grant the same rebates to consolidators. Consolidators collect (...)

The Japanese FTC issues its recommendations against a processor manufacturer for having implemented potentially anticompetitive conditional rebates (Intel)
Japan Fair Trade Commission (Tokyo)
The JFTC rendered a recommendation to Intel K.K.* The Japan Fair Trade Commission (JFTC), March 8, 2005, rendered a recommendation to a Japan-based company, Intel Kabushiki Kaisha (IJKK), a whollyowned subsidiary of Intel International (a wholly-owned subsidiary of Intel Corporation, Santa (...)

The Italian Competition Authority opens proceedings against the incumbent in the electricity sector, for alleged violation of Art. 82 EC in the determination of wholesale prices for electricity (Enel)
London School of Economics (London)
Facts and procedure Enel S.p.A. (hereinafter, ‘Enel’), the Italian incumbent in the electricity sector, is owned at 30% by the State. The undertaking is active in the power generation sector through one of its subsidiaries, Enel Produzione. On 21 February 2005, the Autorità per l’Energia (...)

The Zwolle-Lelystad Dutch Court declares a selective distribution agreement contrary to article 81.1 EC and therefore void in the heart rate monitor sales market (Polar / Walstock)
European Commission - DG HR (Brussels)
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 Austrian Supreme Court finds, on the basis of the essential facilities doctrine, that a distributor abused its dominant position on the market for film distribution by refusing to supply competitors (Constantin-Film)
Reidlinger Schatzmann Rechtsanwälte (Vienna)
DORDA (Wien)
This case relates to the treatment of refusals to supply under Sec. 35 of the Austrian Cartel Act, the Austrian-law equivalent of Article 82 of the EC-Treaty. The decision of the Austrian Supreme Court, acting as Appellate Cartel, reveals a rather generous application of the refusal to (...)


The Czech Competition Authority clears in phase II a merger in the sector of assistance services provided to drivers with behavioural remedies (ÚAMK / Autoklub Bohemia Assistance)
Clifford Chance (Prague)
By this phase II decision, the Office cleared a merger of ÚAMK a.s. ("ÚAMK") and Autoklub Bohemia Assistance ("Autoklub") with a remedy. The operation On the basis of decision dated 29 April 2005, the Office authorized in phase II the merger between ÚAMK and Autoklub, companies particularly (...)

The German Bundeskartellamt cleared a merger in the market for hospital services subject to remedies, including the divestiture of one of the target’s hospitals (Asklepios/LBK Hamburg)
Baker McKenzie (Dusseldorf)
The operation On 1 December 2004 Asklepios Kliniken GmbH (“Asklepios”) notified the Bundeskartellamt of its proposed acquisition of at first 49.9% and subsequently (on 1 January 2007) another 25% of Landesbetrieb Krankenhäuser Hamburg GmbH (“LBK”) from the City of Hamburg, LBK’s sole (indirect) (...)

The EU Commission conditionally clears the creation of two joint ventures resulting from French electronics company merging its space activities with Italian defence and engineering companies (Alcatel / Finmeccanica)
JG Associates (Brussels)
DG COMP (Brussels)
"Mergers — Main developments between 1 January to 30 April 2005"* The European Commission cleared the creation of two joint ventures resulting from the French electronics company Alcatel merging its space activities with those of Alenia Spazio and Telespazio, part of the Italian Defence and (...)

The EU Commission decides not to formally intervene following a claim by banks bidding to merge that the Italian banking regulator created obstacles to their respective bids (BBVA / ABN)
DG COMP (Brussels)
"Italian cross-border banking mergers: A case for Article 21 of the Merger Regulation?"* On 29 March 2005 the Commission received the notification of the proposed acquisition by the Spanish bank Banco Bilbao Vizcaya Argentaria (‘BBVA‘) of the Italian bank Banca Nazionale del Lavoro (‘BNL‘) by (...)

The Danish Competition Council approved the acquisition of a poultry meat producer, subject to the commitment to deliver parent stock to all Danish brooding houses on non-discriminatory terms (Svenska Lantmännen / Spira)
Kromann Reumert (Aarhus)
The operation Svenska Lantmännen (“SvL”) was a Swedish co-operative society with 52,000 Swedish farms as members. SvL operated in a number of different areas, including the agricultural chemical and animal feed sectors. In Denmark, SvL was active in the production of flour, bread, breakfast (...)

The Hungarian Competition Authority clears a merger in the print media sector with obligations including separate operation and price limitations (Tabora / Népszabadság)
Lakatos, Köves (Budapest)
The operation The HCO approved the acquisition of Népszabadság Rt. by B.V. Tabora, which is owned by the Swiss Ringier AG. Originally, B.V. Tabora owned the 49,97 per cent of the shares of Népszabadság Rt. and purchased another 17,68 per cent of the shares from Bertelsmann AG, which made B.V. (...)

The Hungarian Competition Office clears a merger in the daily newspapers market subject to remedies including tying prohibition and price control (Tabora / Népszabadság)
Lakatos, Köves (Budapest)
Lakatos, Köves (Budapest)
In 2003, a member of the Ringier group, B.V. Tabora (Tabora), which held 49.97 per cent of the shares in Népszabadság, one of the largest daily newspapers in Hungary, acquired through share swap another 17.68 per cent stake in Népszabadság, thus holding a total of 67.65 per cent. Tabora requested (...)

The EU Commission acknowledges the withdrawal of a proposed joint venture in the petroleum-based waxes industry (Sasol Wax International / Total)
JG Associates (Brussels)
DG COMP (Brussels)
"Mergers — Main developments between 1 January to 30 April 2005"* Sasol Wax International (Sasol) and Total SA abandoned their proposed joint venture in the field of petroleum-based waxes following the Commission’s decision to open an in-depth investigation under the EU Merger Regulation. Sasol (...)

The Polish Competition Authority clears a merger on the market of nitrate fertilizers and plastics, subject to a divestment remedy (Nafta Polska / Tarnów-Mościce / Zachem)
Clifford Chance (Warsaw)
The operation On 20 April 2005 the President of the OCCP cleared the acquisition of direct control over four Polish chemical plants by Nafta Polska S.A. by way of an acquisition of 80% of the shares in each of the plants. The transaction is a part of a government restructuring programme of the (...)

The Austrian Federal Competition Authority clears a merger in the market for the distribution of dental devices, conditional on remedies comprising the sale of two warehouses, a brand and its trademarks and the divestment of a complete business, including assets and trademarks (Henry Schein/Austrodent)
University of Geneva
The operation The merger had previously been modified twice by the parties. It was first notified in 2004 as a merger between Henry Schein Inc (NY, USA), Demedis GmbH (including businesses in Germany, Benelux and Austria, the latter being represented by Austrodent Handels-GmbH) and Euro Dental (...)

The EU Commission conditionally clears a merger in the chemical products industry used in a variety of end-applications (Bakelite / Appollo)
JG Associates (Brussels)
DG COMP (Brussels)
"Mergers — Main developments between 1 January to 30 April 2005"* In March, the European Commission cleared the proposed acquisition of the German chemical company, Bakelite AG, by the investment group Apollo, subject to conditions. The Commission found that the proposed transaction could give (...)

The UK Office of Fair Trading clears a merger of cinema chains, having accepted undertakings in lieu of making a reference to the Competition Commission (Blackstone/UGC)
Added Value Capital Partners (AVCP) (Royston)
The operation The Blackstone Group (“Blackstone”) is an international private equity investment and advisory group. On 13 October 2004, it acquired the Cine-UK (branded Cineworld) cinema chain, which operates 34 multiplex cinemas in the UK. UGC Cinemas Holdings Limited (“UGC”) is a UK and Irish (...)

State Aid

The Cypriot Commissioner for State aid control authorizes an aid scheme for small and medium-sized enterprises for the promotion of alternative forms of economic activities in the field of agri-tourism (Small and medium-sized enterprises)
Queen Mary University (London)
Factual Background On 29 March 2005, the Department of Town Planning and Housing of the Ministry of Interior notified to the Commissioner for State aid control a draft aid scheme, entitled “aid scheme for small and medium-sized enterprises for the promotion of alternative forms of economic (...)

The EU Commission adopts a decision declaring that an aid scheme designed to cover the risk of loans for the construction and conversion of ships in Italian yards is incompatible with the Common Market
DG COMP (Brussels)
European Court of Justice (Luxembourg)
"Italian guarantee scheme for ship-finance: Commission signals thorough review of guarantee schemes"* Introduction On 6 April 2005 the European Commission, after an in-depth investigation, adopted a decision declaring that an aid scheme designed to cover the risk of loans for the construction (...)

The French Social Security Court seeks ECJ preliminary reference on whether tax financing retirement benefits amounted to State aid (Casino)
Sheppard, Mullin, Richter & Hampton (Brussels)
European Commission (Brussels)
Brief description of the facts and legal issues The claimant and other parties brought an action for reimbursement of certain social security contributions for retiring craftsmen and traders, from ORGANIC which they had paid during the period from 2000 to 2002. The claimant requested the (...)


The Hungarian Supreme Court refuses to apply EU law to cases started before Hungary’s accession to the EU (HCM)
Oppenheim (Budapest)
Oppenheim (Budapest)
Oppenheim (Budapest)
Under the applicable provisions of Hungarian law it is (i) the parties to the administrative procedure (in this case the parties in the proceedings initiated by the HCO) or (ii) those whose rights or legal interests are directly affected by the case who are entitled to request the judicial (...)

The EU General Court annuls a decision of the Commission and confirms the obligation to carry out concrete, individual examination when access to documents is requested (Verein für Konsumenteninformation)
General Court of the European Union (Luxembourg)
THE COURT ANNULS A COMMISSION DECISION REJECTING IN ITS ENTIRETY A REQUEST FOR ACCESS TO THE ADMINISTRATIVE FILE IN A COMPETITION CASE CONCERNING AUSTRIAN BANKS* Concrete, individual examination of the documents referred to in a request for access is one of the elementary duties of an (...)


The French Competition Authority issues an opinion on the wholesale market for access and call origination on the French public mobile networks (ART)
French Competition Authority (Paris)
Press Release published on the official website of the French Competition Authority. MVNOs - The Conseil de la concurrence calls for the regulator to intervene to prevent the risk of insufficient competition on the wholesale mobile telephony market.* In accordance with the market analysis (...)

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