April 2006

Anticompetitive practices

The Portuguese Competition Authority prohibits vertical restraints in the coffee distribution sector and imposes a fine of € 1.000.000 (Nestlé Portugal)
Sérvulo (Lisbon)
The Portuguese Competition Authority (Autoridade da Concorrência), established by Decree-Law n° 10/2003, of January 18th, and hereinafter referred to as “PCA”), announced this April 27th 2006 that it has decided to fine Nestlé Portugal in € 1.000.000 for a violation of article 4 of the Portuguese (...)

The Lisbon Court of Commerce annuls the Competition Authority’s decision concerning a vertical restraint (Nestlé)
Cuatrecasas (Lisbon)
Gleiss Lutz (Stuttgart)
On 15 February 2007, the Lisbon Court of Commerce admitted the appeal filed by the appellant Nestlé Portugal, S.A., of the decision of the Portuguese Competition Authority on infringement for vertical restraints. The case was based on the decision of the Portuguese Competition Authority, dated (...)

The Budapest Court of Appeal confirms the NCA decision fining the multiplex cinemas cartel (Budapest Film / Intercom / Ster Century / UCICE)
Bassola (Budapest)
Hungarian Competition Authority (Budapest)
The Court of Appeal of Budapest established in its judgement of 26 April 2006, that the undertakings, Budapest Film, Intercom, Ster Century Magyarország and UCICE., which ran multiplex cinemas in the shopping centres Mammut, Eurocenter, Lurdy Ház, Duna Plaza, Campona, Westend and MOM Park (...)

The Italian Competition Authority, after investigative coordination with a criminal court, imposes EUR 3.7 million fines to antiseptic and disinfectant product distributors for infringement of Art. 81 EC (Prodotti disinfettanti)
Studio Legale DDPV (Rome)
The Italian Antitrust Authority (Autorità Garante della Concorreza e del Mercato, the “Authority”) has fined producers and distributors of disinfectant and antiseptic products (Astrazeneca S.p.A., Bergamon S.r.l., B. Braun Milano S.p.A., Esoform S.p.A., Farmec S.r.l., Nuova Farmec S.r.l., Germo (...)

The Italian Antitrust Authority fines pharma companies for bid rigging for supply to the public health system (Prodotti disinfettanti)
Freshfields Bruckhaus Deringer (Rome)
Freshfields Bruckhaus Deringer (Rome)
The Italian Antitrust Authority (IAA) has recently completed an Article 81 proceedings against nine suppliers of antiseptic and disinfectants to the public health system levying sanctions totalling approximately € 3.7 million (case I 639). The investigation started in November 2004 and (...)

The Irish Public Prosecutor brings criminal charges against a businessman alleged to have taken part in a price fixing agreement (IFDA / Ford)
Baker Botts (Brussels)
Constantine Cannon (Washington)
Facts On 19 April 2006, the Director of Public Prosecutions for Ireland brought criminal charges against a businessman alleged to have aided members of the IFDA (Irish Ford Dealers Association) in fixing the prices of Ford vehicles on the Irish market. Few details have emerged concerning the (...)

The Czech Office for the Protection of Competition confirms the sanctions imposed on the Czech Chamber of Pharmacists for anticompetitive rules (Ceská lékárnická komora)
Wolf Theiss (Prague)
Czech Ministry of Justice (Prague)
On 14 April 2006, the President of the Office for the Protection of Competition confirmed a first-instance decision by which the Office had imposed a fine of CZK 300,000 (EUR 10,500 approx.) on the Czech Chamber of Pharmacists (Ceská lékárnická komora) for the adoption of several anticompetitive (...)

The EU Commission renders legally binding commitments offered by a company active in the fuel distribution in Spain removing concerns of market foreclosure (Repsol)
DG COMP (Brussels)
"REPSOL: Opening up the fuel distribution system in Spain"* Introduction On 12 April 2006, the Commission adopted a decision based on Article 9 of Regulation (EC) 1/2003 addressed to the largest petrol supplier in Spain, REPSOL Commercial de Productos Petroliferos (‘REPSOL‘), making commitments (...)

The Hungarian NCA holds that the professional rules of book publishers and retailers association restrict competition (Association of Book Publishers and Book Retailers-MKKE)
Bassola (Budapest)
The Competition Council of the Hungarian Competition Authority (Gazdasági Versenyhivatal - GVH) established in its decision, issued on 11 April 2006, that certain provisions of “The rules concerning competition of Hungarian publishing and bookselling” of the Hungarian Association of Book (...)

The Hungarian Competition Authority condemns collective RPM of publishers and bookstores (MKKE)
Oppenheim (Budapest)
Oppenheim (Budapest)
Description of the impugned case The association of Hungarian publishers and bookstores adopted a rule making the resale price prescribed by the publisher mandatory. In fact, as a result of the operation of such rule, publishers were granted the right to determine the retail prices of the (...)

The Irish High Court considers that the Medical Council is not an association of undertakings, therefore domestic and EC Competition law rules do not apply (Ramadan Hemat)
London School of Economics (London)
The Irish Medical Council was established by legislative act in 1978 with, according to its website, a view to “protecting the interests of the public when dealing with registered practitioners”. In this regard, its principal duties are as follows; it guarantees the quality of both undergraduate (...)

The Polish Court for Competition and Consumer Protection upholds the decision fining press distributors for market sharing and price fixing (Ruch, Rolkon, Franpress)
Gajek i Wspólnicy. Adwokaci i Radcowie Prawni sp.k.
Court for Competition and Consumer Protection, 10 April 2005, Ruch S.A., Rolkon Sp. z o.o. and Franress Press Release On 10 April 2006, the Court for Competition and Consumer Protection upheld the decision issued by the President of the Office for Competition and Consumer Protection (“OCCP”) (...)

The US FTC announces its intention to conduct an extensive study of the economic effects of authorized generic pharmaceuticals
Covington & Burling (Washington)
Covington & Burling (Washington)
Covington & Burling (Washington)
On April 4, 2006, the FTC published notice of its intention to conduct an extensive study of the economic effects of authorized generic pharmaceuticals. See 71 Fed. Reg. 16,779 (April 4, 2006). The initial stage of the study would involve detailed information requests, akin to subpoenas, to as (...)

Unilateral Practices

The Cypriot Competition Authority finds that a cement producer has not abused its dominant position by way of unfair pricing of grey cement (Cement Producing Vassilikou)
Amarla Retail (Athens)
The facts Upon a Ministerial Decree effective as from May 2004, the cement market in Cyprus was liberalized, in the sense that the sale prices of cement were no longer directly established by the State through means of Ministerial Decrees. CPPLCV, and the other cement producer in Cyprus, the (...)

The U.S. Court of Appeals Fourth Circuit confirms the dismissal of antitrust claims related to an alleged loss of competitive technologies being deemed so diffuse that it could not possibly be adequately measured (Kloth / Microsoft)
Sheppard Mullin (San Francisco)
Indirect Purchaser and Remoteness Doctrines Barred Antitrust Claims Against Microsoft by End-User Software Licensees* A question arising from end-user license agreements ("EULAs"), which accompany applications software programs that have been preinstalled on personal computers, is whether they (...)

The French Competition Authority issues an opinion on the distinction between abusive and legitimate exercise of a trademark (UEEFL)
Juliette Goyer Avocat (Paris)
Autorité de la concurrence (Paris)
The French Competition Council issued on the 14 April 2006 an opinion regarding the application of French and EC antitrust rules (Articles L. 420-1 and L. 420-2 of the French Commercial Code and Articles 81 and 82 of the EC Treaty) regarding the fruit and vegetables sector in the French region (...)

The Paris Court of Appeal upholds the French Competition Authority’s decision fining a manufacturer for exclusive distribution agreements and RPM but annuls the part of the decision regarding rebates (Royal Canin)
Paris School of Economics
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 Higher Regional Court of Düsseldorf confirms immediate enforceability of national decisions based on Art. 82 EC (Soda-Club)
Fresenius Medical Care (Frankfurt)
Background In a decision dated February 9th, 2006, the German Federal Cartel Office (Bundeskartellamt, or “FCO”) found that Soda-Club GmbH, Wiesbaden (“Soda-Club“) had abused its dominant market position pursuant to Section 19 of the German Act on Restraints of Competition (Gesetz gegen (...)


The Turkish Competition Authority cleared a merger in the cinema theatres market subject to limitation of the geographical scope of non-compete obligation (Mars-Cinema)
Esin (Istanbul)
The operation Mars Cinema is a company primarily active in the business of cinema theatre operation in 6 provinces in Turkey. Mars Cinema had 66 cinema theatres before the operation. Is Girisim is a private equity which is wholly owned and controlled by Is Bankasý Group, a group which also (...)

The EU Commission conditionally clears a merger in the mobile telephony market (T-Mobile Austria / Tele.ring)
JG Associates (Brussels)
DG COMP (Brussels)
Mergers — Main developments between 1 January and 30 April 2006* On 26 April the Commission cleared the proposed acquisition of the Austrian mobile phone operator tele.ring by T-Mobile Austria, subject to conditions and obligations. The Commission had found that the proposed acquisition of (...)

The EU Commission authorizes subject to remedies a merger between two Austrian mobile networks providers applying the new test introduced by the EC Merger Regulation to an undertaking which would not become the market leader after the transaction (T-Mobile Austria / tele.ring)
DG COMP (Brussels)
T-Mobile Austria/tele.ring: Remedying the loss of a maverick* On 26 April 2006, the Commission authorised the acquisition of sole control by T-Mobile, a subsidiary of Deutsche Telekom, of the Austrian mobile phone operator tele.ring, leading to a combination of two Austrian mobile network (...)

The US DoJ settles gun-jumping charges against communication technology companies (Qualcomm / Flarion)
Skadden, Arps, Slate, Meagher & Flom (Palo Alto)
Skadden, Arps, Slate, Meagher & Flom (New York)
On April 13, 2006, the Department of Justice ( “DOJ” ) announced that it had reached a $1.8 million settlement with Qualcomm Incorporated and Flarion Technologies, Inc. to resolve allegations that they each violated the Hart-Scott-Rodino Act of 1976 (“ HSR Act ”) by “jumping the gun” in connection (...)

The European Commission refers the examination of a concentration in the soft-drinks industry to the Italian competition authority (Coca-Cola/Fonti del Vulture)
JG Associates (Brussels)
DG COMP (Brussels)
"Mergers — Main developments between 1 January and 30 April 2006"* On 9 March the Commission received a notification of Coca-Cola’s planned acquisition of the Italian mineral water producer Fonti del Vulture. The Coca-Cola Company (‘TCCC‘) owns trademarks and supplies soft drink concentrates, (...)

The EU Commission conditionally clears a merger between a US healthcare group and a US competitor specialized in cardiovascular medical products (Boston Scientific / Guidant)
JG Associates (Brussels)
DG COMP (Brussels)
Mergers — Main developments between 1 January and 30 April 2006* On 11 April the Commission approved the planned acquisition by US healthcare group Boston Scientific Corporation (‘Boston Scientific‘) of its competitor Guidant Corporation (Boston), a US company specialised in cardiovascular (...)

The UK Competition Authority clears a merger in the offshore drilling services sector, subject to divestments (Transocean / GlobalSantaFe)
Eli Lilly and Company (Greenville)
The operation Transocean Inc. is the leading worldwide provider of offshore contract drilling services to the oil and gas industry. GlobalSantaFe Corporation (“GSF”) is the second largest provider of offshore contract drilling services to the oil and gas industry. On 27 November 2007 GSF (...)

The German Federal Cartel Office gives guidance on the interpretation and application of the failing company defence while clearing a merger in the TV advertising sector (RTL / n-tv)
Gleiss Lutz (Munich)
Milbank, Tweed, Hadley & McCloy (Munich)
On 11 April 2006, the German Federal Cartel Office (FCO) unconditionally cleared the acquisition of shares in n-tv Nachrichtenfernsehen GmbH & Co. KG by RTL Television. The case concerned the question whether a merger strengthening the collective dominant position of RTL and ProSiebenSat.1 (...)

The Slovak and Austrian Competition Authorities investigate on an agreement between Vienna and Bratislava airports (TwoOne)
Freshfields Bruckhaus Deringer (Bratislava)
Šoltýs & Korniet (Bratislava)
In early February 2006 the Slovak Government approved the strategic partner for the Bratislava and Kosice Airports - the consortium “TwoOne” which should acquire a 66-percent stake in both airports. It is important to highlight that one of the partners of the consortium TwoOne is also the Vienna (...)

The Italian Competition Authority clears a merger in the media and telecommunications sectors subject to behavioural remedies, including granting of non discriminatory access to the broadcasting network (Reti Televisive Italiane/Ramo Di Azienda di Europa TV)
Clifford Chance
Chiomenti (Rome)
The operation On 10 April 2006 the Competition Authority cleared with conditions the acquisition of some assets of the broadcasting network Europa TV S.p.A. (Europa TV), owned by Holland Coordinator & Service Company Italia S.p.A. (71%) and TF1 SA (29%), by R.T.I. Reti Televisive Italiane (...)

The Portuguese Competition Authority blocks a merger in the highways operation sector but the Minister of Economy finally overturns the Competition Authority’s decision (AEA / Brisa - AEO)
Cuatrecasas (Lisbon)
Cruz Vilaça Advogados (Lisbon)
NB: This case is referrenced under two different dates: 7 April 2006 for the NCA’s decision, and 7 June 2006 for the Minister’s decision. The comment below concerns these two decisions. On 24 March 2005, Brisa - Auto-Estradas de Portugal, S.A. (“Brisa”), through its wholly-owned subsidiary Via (...)

The German Bundeskartellamt cleared a merger in the market for waste disposal services subject to remedies including the divestiture of an asset/share package (Sulo/Cleanaway)
Baker McKenzie (Dusseldorf)
The operation Sulo GmbH (“Sulo”) proposed to acquire Cleanaway Deutschland Holding GmbH (“Cleanaway”). Both Sulo and Cleanaway are active in all the major German waste disposal markets. As the total turnover of the parties exceeded the €5 billion threshold in Art. 1 para. 2 (a) of the ECMR, the (...)

The EU Commission approves, subject to divestiture, an acquisition in the insurance sector (Talanx / Gerling)
JG Associates (Brussels)
DG COMP (Brussels)
Mergers — Main developments between 1 January and 30 April 2006* On 5 April the proposed acquisition of the German insurance group Gerling by the insurer Talanx was approved. Talanx Aktiengesellschaft (‘Talanx‘) is a German holding company. Its subsidiaries offer life and non-life insurances to (...)

State Aid

The Danish Competition Authority finds that a municipality has incorrectly calculated the costs incurred by a municipal service provider and concludes to the existence of State aid (Fritvalg - Frederikssund Kommune)
Honoré & Fallesen (Copenhagen)
Brief description of the facts and legal issues The Danish Competition Authority (DCA) found that a Danish municipality had fixed its prices for home care below the actual cost level. Thereby, the municipal service provider was found to be in receipt of State aid falling under the Danish (...)

The Belgian Civil Supreme Court holds that an alteration to an aid system, which was held to be incompatible with the common market, is to be considered as an aid and be notified pursuant to Art. 88 EC (Health and Animal Protection Funds)
Sheppard, Mullin, Richter & Hampton (Brussels)
European Court of Justice (Luxembourg)
Factual background The defendant is an undertaking active in the sector of production of food for cattle. It paid contributions to the Health and Animal Protection Funds pursuant to a provision of national law of December 1987 and implementing acts (Royal-Decree). The provision had not been (...)

The Belgian Court of Arbitration in Antwerp rules that taxation of insurance contracts is not contrary to Art. 87 EC (NV A.A.)
Sheppard, Mullin, Richter & Hampton (Brussels)
European Court of Justice (Luxembourg)
Factual Background For several years, NV A.A. offered its clients a hospital admission insurance policy. This insurance which complementary to the mandatory insurance provided by health insurance funds. In 1999, NV A.A. paid the sum of € 705,883.73 in tax regarding these insurance contracts for (...)

The Dutch Supreme Court finds that an applicant can not rely on the direct effect of Art. 88.3 EC as the contested taxes did not form an integral part of a State aid measure (X B.V.)
Adyen (Amsterdam)
Factual Background X B.V. exploits a waste water treatment plant. In 1997, X B.V. was asked to pay retrospective taxes pursuant to the Act introducing taxes for the protection of the environment (Wet belastingen op milieugrondslag - ’Wbm’) over the period 1 January 1995 until 3 July 1995. X (...)

The Belgian Arbitration Court dismisses a claim for the annulment of a national law granting a tax exemption regime to the telecommunication incumbent making a confusion between the competences of the EU Commission and national courts (Belgacom)
Sheppard, Mullin, Richter & Hampton (Brussels)
European Court of Justice (Luxembourg)
Factual background The tribunal of Gand refered a question for preliminary ruling to the Arbitration court relating to the validity of a provision of the Belgian fiscal code granting a housing tax exemption for property. Belgacom contested the payment of the taxes after it lost the benefit of (...)

The Cypriot Commissioner for State aid control authorises a research and development cooperation programme finding that it falls within EC Reg. N° 70/2001 (Joint Cooperation Programme)
Queen Mary University (London)
Factual Background On 18 April 2006 the Research Promotion Foundation notified to the Commissioner for State aid control a draft aid scheme, entitled “Joint Cooperation Programme between Cyprus and Greece”. The general objective of the Programme is the promotion of cooperation and networking (...)


The UK Office of Fair Trading publishes Guideline on the involvement of third parties in investigations under the Competition Act 1998
United Kingdom’s Competition Authority - CMA (London)
Background Although the Competition Act 1998 (the Act) allows third parties having a “sufficient interest” to appeal decisions of the Office of Fair Trading (OFT) regarding infringement of the Act to the Competition Appeal Tribunal (CAT), the Act does not deal explicitly with the involvement of (...)

The Finnish Supreme Administrative Court rules on right of access to documents related to cartel investigations on the basis of the Finnish Act on Openness of Government Activities (Skanska Asfaltti Oy / Metsäliitto Ossuskunta)
Dittmar & Indrenius (Helsinki)
Krogerus (Helsinki)
The Finnish Supreme Administrative Court has in April 2006 given two rulings concerning the right of a party to obtain information related to cartel investigations from the Finnish Competition Authority (FCA). The cases cover the definition of an official document to which access must be given (...)

The French Competition Council specifies the scope and the mechanism of its anti-cartel leniency programme by simultaneously issuing its first leniency decision and publishing a procedural leniency notice (Doors manufacturing)
On 11 April 2006, the French Competition Council (“CC” or “the Council”) issued simultaneously its first ever formal decision in a leniency application procedure and a notice on the French leniency programme. The case at stake involved ten wooden-door producers that have operated two cartel (...)

The French Competition Authority implements the leniency procedure for the first time (Door manufacturing sector)
Simmons & Simmons (Paris)
Hewlett Packard (Boulogne-Billancourt)
On 11 April 2006, the French Competition Council (“Conseil de la concurrence”) published a decision condemning door manufacturers active in two cartels. In this case, for the first time, the Conseil de la concurrence applied the leniency procedure for cartel whistleblowers. The leniency (...)


The EU Commission issues preliminary results of its sector inquiry into payment cards industry raising competition concerns
DG COMP (Brussels)
DG COMP (Brussels)
DG COMP (Brussels)
"Preliminary results of Commission sector inquiry in payment cards industry raise competition concerns"* 1. Introduction The payment cards industry is of growing economic importance in Europe. Cards increasingly replace cash and cheques as payment means for over the counter purchases. In 2004 (...)

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