April 2008

Anticompetitive practices

The Luxembourg Administrative Tribunal upholds fines and periodic penalty payments imposed by the Competition Council (”House of Justice" case)
Moyse Bleser (Luxembourg)
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Post Luxembourg
Background By a decision of 30 April 2007 (the "Decision") the Competition Council (the "Council") imposed fines and periodic penalty payments on three companies which had refused to submit appropriate information to the Competition Inspectorate (the "Inspectorate") in the course of a cartel (...)

The UK Competition Appeal Tribunal denies permission to bring follow-on damages actions while appeals to the European Court of First Instance are pending (Emerson Electric / Morgan Crucible)
Pinsent Masons (London)
Background 1. On 3 December 2003, the European Commission (the “Commission”) adopted a decision finding that various undertakings had participated in a series of agreements and concerted practices within the meaning of Article 81 EC Treaty ( “Article 81”) in the market for carbon and (...)

The Dutch Court of Appeal of the Hague, after having saught the opinion of the European Commission, holds that a decision adopted by a mussel farmers association did not breach Art. 81.1 EC (Vereniging Productenorganisatie van de Nederlandse Mosselcultuur / Praet en Zonen)
European Commission - DG HR (Brussels)
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European Court of Justice (Luxembourg)
In 1998, PO, a cooperative association of mussel farmers, adopted a regulation (hereafter the “1998 regulation”) providing for the allocation to its members of the mussel seeds quantity that they could fish, of which the total amount is determined by government on a yearly basis. On 25 January (...)

The Danish public prosecutor negotiates a fine with an association of suppliers of nautical equipment, its director and chairman for price agreements and retail price maintenance (Nautisk Udstyr)
Danish Competition and Consumer Authority (Copenhagen)
On the 20 April 2008, the association Nautisk Udstyr ApS, accepted to pay a fine of DKK 400,000 (EUR 53,000) for infringing the Danish Competition Act. The association’s director and Chairman also each accepted a personal fine of DKK 25,000 (EUR 3,000) for their involvement. The investigation (...)

The Paris Court of Appeal upholds the legality of two restrictions on Internet sales by authorised retailers within a selective distribution network (PMC Distribution / Pacific Création)
Freshfields Bruckhaus Deringer (Paris)
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Freshfields Bruckhaus Deringer (Paris)
In its decision dated 18 April 2008, S.A.R.L. PMC Distribution vs. S.A.S. Pacific Création, the Paris Court of Appeal (the "Court") takes part in the debate on the legal regime of Internet sales within selective distribution systems. Pacific Création, an undertaking which manufactures and (...)

The Dutch Supreme Court considers burden of proof in trade mark exhaustion case (Joop! / Jil Sander / Davidoff / Lancaster)
Van Bael & Bellis (Brussels)
On 18 April 2008, the Dutch Supreme Court (Hoge Raad) handed down a judgment relating to the burden of proof in a trade mark exhaustion case. The judgment refines earlier case-law on the matter. In the case at hand, various luxury cosmetic brands, including Joop!, Jil Sander and Davidoff, had (...)

The Paris Court of Appeal confirms the possibility for a fragrance manufacturer to exclude pure players and to restrict internet sales within its selective distribution network (PMC Distribution / Pacific Création)
Kramer Levin Naftalis & Frankel (Paris)
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Eversheds Sutherland (Paris)
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Orrick, Herrington & Sutcliffe (Paris)
Facts and Ruling In the present case, the dispute arose between Pacific Creation, a fragrance manufacturer and retailer and PMC Distribution (PMC), a pure player which offers branded products exclusively on the Internet. In France, Pacific Creation‘s fragrances are retailed through a selective (...)

The UK Office of Fair Trading, following its biggest investigation to date, names and shames 112 construction companies in a statement of objections formally accusing them of participation in widespread bid rigging (Construction Industry Cartels)
Womble Bond Dickinson
On 17 April 2008, the British Office of Fair Trading (“OFT”) announced in a press release the names of no less than 112 construction companies against which a Statement of Objections (“SO”) has been issued, whereby the OFT alleges their participation in widespread bid rigging. The recipients of the (...)

The ECJ Advocate General Mazák recommends rejection of appeals in French beef case (Coop de France bétail and viande)
Van Bael & Bellis (Brussels)
On 17 April 2008, Advocate General Mazák delivered an opinion in relation to the joined appeals brought before the European Court of Justice (ECJ) by the Coop de France Bétail et Viande(FNCBV) and the Fédération nationale des syndicats d’exploitants agricoles(FNSEA), the Fédération nationale (...)

The European Commission consults on the insurance block exemption regulation
Van Bael & Bellis (Brussels)
On 17 April 2008, the European Commission published a consultation paper on the functioning of the Insurance Block Exemption Regulation. The Commission originally adopted a Block Exemption Regulation covering the insurance sector in 1992. When the 1992 Regulation expired in 2003, it was (...)

The Hungarian Competition Council accepts commitments to reduce the duration of non-compete obligations in beer supply agreements (Borsodi Sörgyár)
Baker McKenzie (Budapest)
The Hungarian Competition Council terminates an investigation concerning beer supply agreements by adopting a commitment decision and making the commitments of a beer producer binding, pursuant to which the duration of non-compete obligations is to be reduced to five years. The background of (...)

The Belgian Competition Authority clarifies the standard of proof applicable to cases involving recommended prices by associations (Intérêts veterinaries)
Altius (Brussels)
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Altius (Brussels)
On 15 of April 2008 the Belgian Competition Council (Conseil de la Concurrence/Raad voor de Mededinging) (“BCC”) adopted its decision in a case about price recommendation by a Belgian veterinarian association (hereinafter referred to as the “veterinarian decision”). Around the same time, the BCC (...)

The Italian Competition Authority opens proceedings in the market of football audiovisual rights for alleged violation of Art. 81 and/or 82 EC (Lega Calcio / Chievo Verona)
LUISS Guido Carli University (Rome)
On April 2008, the Italian Competition Authority (hereinafter, also the “Authority”) launched an investigation in the market of football audiovisual rights in order to find out any possible infringements of article 81 and/or 82 of the EC Treaty. Party under investigation Investigations (...)

The French Supreme Court sets the standard of proof for vertical price fixing agreements (Casino - Disney video)
Freshfields Bruckhaus Deringer (Paris)
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Lni avocats (Paris)
In 2005, the French Competition Council (“the Council”) fined Buena Vista Home Entertainment (“BVHE“), the exclusive distributor of Disney video cassettes in France (€3.1 million), the retailers Casino (€3.2 million) and Carrefour (€5.7 million), and the wholesaler SDO (€2.4 million) for engaging in a (...)

The Paris Court of Appeal rebuts the decision of the Competition Council regarding practices in the market of distribution of pharmaceutical products (GlaxoSmithKline)
RBB Economics (Paris)
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SNCF Réseau (Paris)
Presentation 1. For the first time of its existence, on 14 March 2007, the French Competition Council (thereafter “CC”) had decided to sanction a firm for predatory pricing, namely GlaxoSmithKline (thereafter “GSK“) for an amount of 10 million euro. GSK appealed to this Decision. On 8 April 2008, (...)

The Polish Office of Competition and Consumer Protection imposes a fine of over € 13,000,000 on two operators in the do-it-yourself sector for concerted price fixing practices and refuses to grant leniency (Castorama - ICI)
Kochanski & Partners (Warsaw)
The commented decision, issued on 7 April 2008 (the “Decision”) by the President of the Office for Competition and Consumer Protection (the “OCCP President”), results from the antimonopoly proceedings initiated in December 2006. The Office’s investigation focused on determining whether Castorama, (...)

The Polish Competition Authority fines € 13.3 millions two distributors for vertical agreement on prices (Castorama Polska - ICI Polska)
Greenberg Traurig Grzesiak (Warsaw)
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PKN Orlen (Warsaw)
Factual background On 7 April 2008, the President of the Office for Competition and Consumer Protection («OCCP») found Castorama Polska Sp. z o.o. («Castorama») and ICI Polska Sp. z o.o. («ICI») guilty of a concerted practice regarding the price fixing of paints and varnishes. The joint amount of (...)

The Belgian Competition Council fines participants of a hardcore cartel in the chemical industry a record total fine of € 500,000 and grants leniency (Bayer, Solutia Europe, Ferro Europe, Polynt)
Sheppard Mullin (Brussels)
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Lexxion Publisher (Berlin)
Background The product concerned was BBP (butyl benzyl phthalate), a chemical which is mostly used in the production of PVC products. The cartel culminated in scheduled meetings where the participants, the three main producers of BBP in Belgium and a distributor colluded by price fixing, (...)

The Belgian Competition Council fines three companies nearly € 1.5 M for price fixing, market sharing and output-limitation in the chemical industry and applies leniency (Bayer - Ferro - Lonza and Solutia Europe)
Autorité de la concurrence (Paris)
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DG COMP (Brussels)
On 4 April 2008, the Belgian Competition Council found the three biggest producers of Butyl Benzyl Phthalate (BBP) - i.e. Bayer, Ferro and Solutia Europe - and a distributor (Lonza) guilty of fixing price, market-sharing, limiting output and exchanging strategic information. BBP is a chemical (...)

The Budapest Court of Appeal annuls fines imposed on artists’ associations (Magyar Alkotóművészek Országos Egyesülete)
Van Bael & Bellis (Brussels)
By judgment of 2 April 2008, the Budapest Regional Court of Appeal reduced the cartel fine that the Hungarian Competition Authority (GVH) had imposed on three associations of artists in 2005 for coordinating their members’ prices. While the GVH had originally imposed fines totalling HUF 26.5m (...)

The French Competition Authority fines seven physicians’ unions for conspiring to increase fees for patient visits (Union des médecins spécialistes confédérés)
French Competition Authority (Paris)
Press Release published on the official website of the French Competition Authority. Sector 1 Specialist Physicians Overcharging Fees: The Conseil de la concurrence fines 7 physicians’ unions for conspiring to increase fees for patient visits.* Pursuant to an action brought by the Rural (...)

The Spanish Competition Authority imposes a 15 M Euros fine over two associations of carriers for acting as a cartel in the transport sector (Transportes Barcelona)
Chilean Competition Tribunal (Santiago)
On April 1st, 2008, the Council of the Spanish National Competition Commission (the “Council”) ruled that two Spanish associations of carriers acted as a cartel regarding the road haulage of containers in the Port of Barcelona. The Council decided to impose heavy fines on the two associations, (...)

The Lazio Administrative Tribunal annuls a decision of Italian NCA in local public transport market (SITA, APM, CO.TR.I., RETITALIA, TP NET, 60 MC-Associazione)
Van Bael & Bellis (Brussels)
In two recently published judgments of April and May 2008, the Lazio Administrative Tribunal (“LAT”) has partially annulled two decisions of the Italian Competition Authority (“ICA”) finding that certain companies had concluded anti-competitive arrangements relating to the local public transport (...)

Unilateral Practices

The German Federal Court of Justice finds that there is no uniform product market for heat energy sources on the retail level and rather defines the market merely for the supply of end consumers with natural gas as the relevant product market (Erdgassondervertrag)
Free University of Berlin
I. Background The decision is the (temporary?) end of a series of conflicting German court decisions that disagree on the issue whether there is one uniform market for heat energy sources or separate markets for each of the relevant sources (fuel oil, coal, district heating, natural gas, (...)

The Maltese Commission for Fair Trading strikes down finding of abuse of dominance in the market of cereals while briefly reviewing State aids issue (Federated Mills)
Sciberras & Lia (Valletta)
Federated Mills plc, an undertaking importing wheat, and selling processed flour to retailers in Malta, requested the Director of the Office for Fair Trading (hereinafter referred to as ‘the Director), to submit for review to the Commission for Fair Trading (hereinafter referred to as ‘the (...)

The Spanish Competition Authority fines a power company for excessive pricing in the technical restrictions market (Gas Natural)
Hogan Lovells (Madrid)
The Spanish Competition authority (Comisión Nacional de la Competencia, "the Commission") has imposed a fine of € 1.5 million on Gas Natural for abusing its dominant position in the electricity technical restrictions market, thereby breaching Article 6 of the former Spanish Law n° 16/1989 on (...)

A US Court of Appeals sets aside FTC’s order holding that the Agency failed to prove antitrust violation in the computer memory industry (Rambus)
Skadden, Arps, Slate, Meagher & Flom (Washington DC)
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Skadden, Arps, Slate, Meagher & Flom (New York)
On April 22, 2008, the U.S. Court of Appeals for the District of Columbia Circuit held in Rambus Inc. v. FTC, No. 07-1086, that the FTC failed to prove that Rambus Inc. violated antitrust law when it participated in a trade organization’s setting of industry technology standards without (...)

A U.S. Court of Appeals overturns an FTC’s ruling in the computer memory market for failing to prove unlawful monopolization (Rambus)
Akin Gump Strauss Hauer & Feld (Washington)
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Winston & Strawn (New York)
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Winston & Strawn (New York)
The Court of Appeals for the District of Columbia Circuit has overturned the Federal Trade Commission’s ruling against Rambus, Inc. (“Rambus”), finding that the Commission did not prove that Rambus’s failure to disclose certain intellectual property interests to a standard-setting organization (...)

The EU Court of First Instance examines an appeal against a Commission’s decision on abuse of dominant position (Deutsche Telekom)
Van Bael & Bellis (Brussels)
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Practising Law Institute (New York)
Details of Deutsche Telekom’s appeal against the Court of First Instance’s judgment of 10 April 2008 have been published. According to the summary of the appeal, Deutsche Telekom is arguing, inter alia, that the Court of First Instance infringed Article 82 EC and the principle of legitimate (...)

The EU Court of First Instance upholds Commission decision against the German incumbent telecommunications operator (Deutsche Telekom)
Van Bael & Bellis (Brussels)
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Practising Law Institute (New York)
On 10 April 2008, the Court of First Instance (“CFI”) issued its judgment on Deutsche Telekom‘s appeal of the Commission Decision of 23 May 2003 (the “Decision”) which had fined it € 12.6 million for engaging in a margin squeeze. The CFI upheld the Decision in virtually all respects. In the (...)

The Warsaw Court of Appeal quashes the first instance ruling reversing the NRA’s decision having imposed a € 21.5 million fine on the telecommunications incumbent for tying of Internet services contrary to cost-oriented prices principle (Telekomunikacja Polska)
European University Institute (Florence)
On 10 April 2008 the Court of Appeal quashed the verdict of the lower court, the SOKiK (the Polish Court for Competition and Consumer Protection), which in 2007 reversed the decision of the President of the UKE (the Office for Electronic Communications), imposing a 100 million PLN fine (...)

The Austrian Supreme Court finds that promotional giveaway is not predatory pricing
Van Bael & Bellis (Brussels)
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Practising Law Institute (New York)
In a recently published decision of 8 April 2008, the Austrian Supreme Court assessed whether a newspaper undertaking involved in distribution abused its dominant position by offering a motorway permit sticker for free with new subscriptions. The undertaking, dominant on the Austrian market for (...)

The Austrian Federal Competition Authority settles a dispute regarding jet fuel supply at the Vienna International Airport (OMV)
Reidlinger Schatzmann Rechtsanwälte (Vienna)
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Bpv Hügel (Vienna)
In a decision of 4 April 2008, the Austrian Cartel Court declared certain commitments agreed between the Federal Competition Authority ("FCA") and Austrian oil incumbent (OMV) binding on OMV. Background The case’s beginnings lie in a conflict between two companies with strong State (...)

The Austrian Cartel Court accepts commitments in the jet fuel market (OMV)
Van Bael & Bellis (Brussels)
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Practising Law Institute (New York)
On 3 April 2008, the Austrian Cartel Court accepted the commitments of OMV AG (“OMV”) aimed at remedying concerns that OMV had abused its dominant position on the market for the provision of jet fuel and fuel transport infrastructure at the Vienna airport. As a result, OMV has agreed to give (...)

The Dutch Competition Authority clears a collective performance rights organisation of allegations of price discrimination and excessive pricing (Fresh FM / Buma)
DG COMP (Brussels)
Introduction On the 16 January 2003, the commercial regional radio station Fresh FM submitted a complaint to the Dutch Competition Authority, the Nma, regarding the tariffs charged by Buma, the Dutch collective performance rights organization, to its clients. Fresh FM accused Buma of abusing (...)

The EU Court of Justice Advocate General Colomer gives his opinion on abuse of dominant position in the pharmaceutical sector (Lélos kai Sia)
Van Bael & Bellis (Brussels)
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Practising Law Institute (New York)
On 1 April 2008, Advocate General Colomer gave his opinion in Joined Cases C-468/06 to C-478/06 Sot. Lélos Kai Sia EE (and Others) v GlaxoSmithKline AEVE.The case relates to a long series of disputes in Greece where GlaxoSmithKline has been accused of abusing its dominant position by reducing (...)

Mergers

The Russian NCA cleared a merger in the retail distribution sector subject to numerous behavioural remedies (Rusel / X5 Retail Group)
Clifford Chance (Moscow)
The operation The retail company X5 Retail Group N.V. ("Acquirer") applied for clearance of its proposed acquisition of indirect control over the retail group OOO "Rusel" ("Target") through acquisition of 100% in Formata Holding B.V. The market The transaction related to the retail market (...)

The French Minister of Economics clears with remedies a merger in the retail sector subject to outlets divestment and commitment not to expand or open new outlets (Vivarte / Super Sport)
French Competition Authority (Paris)
The operation In this case, the Minister cleared the acquisition of Vivarte and Supersport with remedies. Both companies are retailers of shoe, clothes and sport equipments. The market(s) The relevant markets were the retail market of low-cost clothes and the retail market of low-cost shoe. (...)

The German Federal Cartel Office clears merger between book suppliers despite high market shares in a local market (Karlsruher Buchmarkt)
Compass Lexecon (Hong Kong)
Summary On 30 April 2008 the German Federal Cartel Office (FCO) cleared a merger between two book suppliers despite high market shares in a local market. Although the FCO left open the question of whether online book sales belong to the relevant product market, it considered online book sales (...)

The Portuguese Competition Authority clears in phase I a merger in the discount retail distribution with structural remedies (Pingo Doce/Plus)
Uria Menéndez (Lisbon)
On 29 April 2008, the Portuguese Competition Authority (the “AdC”) adopted a merger control decision in accordance with Law 18/2003 of 11 June (the Portuguese Competition Law), which approved the proposed acquisition of Plus Portugal (the Tengelmann Group’s food-related distribution ‘discount’ (...)

The Belgian Competition Council conditionally clears a merger in phase II between several owners of cable networks for telecommunications services in Wallonia (Tecteo / Brutele - Câble Wallon)
Freshfields Bruckhaus Deringer (Hong Kong)
The operation Following a Phase II review, by decision dated 25 April 2008 the Council authorized the two-stage merger resulting in the acquisition of control by Tecteo of certain cable networks in Wallonia. The concentration involved several associations of local authorities transferring (...)

The US Department of the Treasury issues long-awaited proposed regulations to implement the Foreign Investment and National Security Act of 2007
Linklaters (New York)
On April 21, the US Department of the Treasury issued long-awaited proposed regulations to implement the Foreign Investment and National Security Act of 2007 ("FINSA"). FINSA was passed in the wake of several controversial foreign investment transactions that cleared the Exon-Florio national (...)

The European Commission conditionally approves a merger in the Austrian markets for daily consumer (Rewe goods, Adeg)
DG COMP (Brussels)
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DG REGIO (Brussels)
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DG COMP (Brussels)
"Rewe goods /Adeg - Food for thought - Austrian markets for daily consumer"* I. Introduction The Rewe/Adegmerger case concerned the Austrian markets for the retail sale of daily consumer goods and the respective procurement markets. It raised a number of interesting legal and economic issues. (...)

The Russian NCA cleared a merger in the electric boiler market subject to remedies, including commitment not to decrease or cease the target’s production (Evan / Nibe Industrier)
Clifford Chance (Moscow)
The operation The Swedish manufacturer of electric heating applications Nibe Industrier AB (“Acquirer”) applied for clearance of the acquisition of indirect control over ZAO "EVAN" (“Target”) through acquisition of the Swedish holding company Russian Boilers Holdings AB. The market The (...)

The Russian NCA cleared a merger in the heat supply services sector subject to remedies, including access to pipeline networks and other essential facilities (Tverskaya teplosnabzhayushaya kompaniya / Rossiyskie kommunalnye sistemy)
Clifford Chance (Moscow)
The operation The utilities provider OAO "Rossiyskie kommunalnye sistemy" (“Acquirer”) requested clearance for the acquisition of the entire voting capital of OOO "Tverskaya teplosnabzhayushaya kompaniya" (“Target”) a provider of pipeline network services for heat supply in the region of Tver. (...)

A German Minister overrules on public interest grounds the FCO’s prohibition of a merger in the hospital sector (University hospital Greifswald / Regional hospital Wolgast)
Van Bael & Bellis (Brussels)
On 17 April 2008, the German Federal Minister of Economics and Technology approved the merger between the university hospital Greifswald and the regional hospital Wolgast, thereby overruling the German Federal Cartel Office’s (FCO) prohibition of the transaction in December 2006. Under German (...)

The European Commission conditionally clears a merger in the temporary employment services (Randstad/Vedior)
JG Associates (Brussels)
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DG COMP (Brussels)
"Mergers: main developments between 1 January and 30 April 2008"* Randstad‘s proposed acquisition of Vedior was also cleared subject to conditions in April. Both parties provide manpower or employment services and are based in the Netherlands. The Commission’s approval was granted subject to (...)

The Latvian Competition Council imposes fines for failure to notify a de facto concentration (Latvijas Mobilais Telefons)
Cobalt Legal (Riga)
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Cobalt Legal (Riga)
On 16 April 2008, the Latvian Competition Council (hereinafter the “Competition Council”) adopted two decisions regarding the acquisition of control over ZetCOM, SIA (hereinafter “ZetCOM”) by Latvijas Mobilais Telefons, SIA (hereinafter “LMT”). In the first decision, the Competition Council found (...)

The Dutch Competition Authority clears a merger in the Dutch healthcare sector after a Phase II investigation emphasizing an analysis of the “relevant market” definition (AMC de Meren - JellinekMentrum)
RBB Economics (The Hague)
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Jones Day (Brussels)
Introduction On 16 April 2008 the Dutch Competition Authority (Nederlandse Mededingingsauthoriteit,hereafter the “NMa”) cleared the merger of Stichting AMC de Meren and Stichting JellinekMentrumafter a Phase II investigation. AMC de Meren and JellinekMentrumare both health care institutions that (...)

The French Minister of Economy requires commitments to address possible horizontal and conglomerate effects in a merger of a mobile network and pay-TV operator and an Internet service provider (SFR / Neuf Cegetel)
RBB Economics (Brussels)
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RBB Economics
Introduction On 15 April 2008, the French Minister of Economy (hereafter, the Minister) cleared the proposed acquisition by Société Française du Radiotéléphone (SFR) of a majority share of Neuf Cegetel, subject to remedies. The transaction raised conglomerate issues in the markets for broadband (...)

The German FCO finding “competitively significant influence” arising from acquisition of less than 14% shareholding in copper company prohibits transaction (A-TEC Industries / Norddeutsche Affinerie)
Van Bael & Bellis (Brussels)
According to a press release of 10 April 2008, the German Federal Cartel Office (FCO) prohibited A-TEC Industries’ acquisition of a 13.75% shareholding in Norddeutsche Affinerie, holding that the transaction created a dominant position on a market for a particular kind of oxygen-free copper (...)

The Russian NCA cleared a merger in the personal insurance sector subject to remedies, including notification of future cooperation agreements (TechAtomProm / Assicurazioni Generali)
Clifford Chance (Moscow)
The operation The Italian insurance group Assicurazioni Generali S.p.A. (“Acquirer”) applied for clearance of its proposed acquisition of indirect control over the Russian insurance company OOO "TechAtomProm" (“Target”). The market The transaction related to the personal insurance markets in the (...)

The French Minister of Economics cleared with remedies a merger in the retail sector subject to outlets divestment and commitment not to expand or open new outlets (Vivarte / Défi Mode)
French Competition Authority (Paris)
The operation In this case, the Minister cleared the acquisition of Vivarte and Défi Sport with remedies. Both companies are retailers of clothes. The market(s) The relevant market is the retail market of low-cost clothes. The geographic dimension of the market is local. Remedy 1 Divestment (...)

The EU Commission clears an acquisition in the beer production and distribution sector (Heineken/Scottish & Newcastle)
JG Associates (Brussels)
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DG COMP (Brussels)
"Mergers: main developments between 1 January and 30 April 2008"* On 3 April the Commission approved the proposed acquisition by the Dutch company Heineken of the businesses of UK-based brewer Scottish & Newcastle in Belgium, Finland, Portugal and the United Kingdom as it found that the (...)

The Russian NCA clears a merger in the insurance market subject to remedies, including transfer of specific target’s insurance portfolios to third parties (KS-Holding/Sineron Holdings)
Clifford Chance (Moscow)
The operation The insurance company Sineron Holdings Limited (“Acquirer”) applied for clearance of its proposed acquisition of the entire voting capital in the insurance company ZAO "KS-Holding" (“Target”). The market The transaction related to the insurance markets for personal insurance in the (...)

The Dutch Competition Authority clears a merger in the medical services subject to divestment of several nursing homes (Evean Groep - Philadelphia - Woonzorg Nederland)
Netherlands Authority for Consumers & Markets (The Hague)
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Eversheds Sutherland (Amsterdam)
The operation The activities of Evean Group, Philadelphia and Woonzorg Nederland mainly involve the offering of services in the field of exceptional medical expenses act care. The operation entails an administrative merger between the respective supervisory and executive board of the merging (...)

The Chinese State Council seeks comments on draft rules for merger control filings
Linklaters (Beijing)
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Linklaters (Brussels)
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Linklaters (Shanghai)
The PRC Anti-monopoly Law (promulgated on 30 August 2007 and effective on 1 August 2008) regulates monopolistic conduct which has the effect of eliminating or restricting market competition within the PRC. One type of monopolistic conduct regulated by the PRC Anti-monopoly Law (the "AML") is (...)

State Aid

The European Commission considers that the privatisation of publicly owned Austrian bank constitutes a State aid incompatible with EC State aid rules (Bank Burgenland)
DG REGIO (Brussels)
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DG COMP (Brussels)
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DG COMP (Brussels)
"State aid issues in the privatisation of public undertakings - Some recent decisions"* I. Introduction The general definition of State aid is set out in Article 87(1) of the EC Treaty, which prohibits ‘…any aid granted by a Member State or through State resources in any form whatsoever which (...)

The European Commission prohibits a regional investment aid notified by Hungary after assessing the relevant market in the context of a large investment project (IBIDEN Hungary)
DG COMP (Brussels)
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DG COMP (Brussels)
"State aid to IBIDEN Hungary: Assessing the relevant market in the context of a large investment project"* I. Introduction As defined in the Commission’s 2002 Multisectoral Framework on regional aid for large investment projects (MSF), a large investment project is an initial investment with (...)

The Belgian Council of State ruled that there was no need for the procuring entity of a public tender procedure to inquire about the legality of an underlying State aid received by one of the tenderers
Sheppard Mullin (Brussels)
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European Court of Justice (Luxembourg)
Factual Background This case concerns a public tender procedure in which VZW Merlijn Marketeer (“VZW”) was awarded the assignment to investigate the existing customer relations of the National Bank of Belgium (“Bank”). VWZ’s offer was the most economical, in that it was the lowest price of all the (...)

A Slovakian Regional Court rules that the debt write-off under the “arrangement with creditors” does not constitute State aid within the meaning of the State Aid Act (Frucona)
Nedelka Kubáč advokáti (Bratislava)
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Ružička Csekes
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Ružička Csekes
Factual background: The defendant is a company active in production of beverages which was granted a debt write - off based on the concluded “arrangement with creditors” under the Act on Bankruptcy (Act No. 328/1991 Coll. on Bankruptcy and Arrangement with Creditors). “Arrangement with (...)

The Lithuanian Supreme Administrative Court rules that the actions of the Ministry of Agriculture were legal and could not engage its civil liability and rejects the applicant’s claims without examining the issue under State aid rules (Arvi Cukrus UAB)
Raidla Lejins & Norcous
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Valiunas Ellex (Vilnius)
Factual background Pursuant to the order of the Minister of Agriculture No 412 “Concerning the Export of White Sugar” dated 21 October 2002, sugar manufacturers were subject to mandatory export quotas of white sugar. According to the applicant, the export price of the compulsory quota was (...)

The Italian Constitutional Court holds that a regional tax provision could potentially impose a selective tax burden on non-resident undertakings and therefore constitute unlawful State aid for undertakings domiciled for tax purposes in the region (Region of Sardinia)
EUJUS Law Firm (Rome)
Factual background The President of the Council of Ministers (“PCM”) sought a declaration of unconstitutionality in respect of certain provisions contained in Law No. 4 of the Region of Sardinia of 11 May 2006, (Miscellaneous provisions on revenue, reclassification of costs, social policy and (...)

The EU Court of First Instance annuls the Commission decision clearing export aid in the French book sector (SIDE)
Van Bael & Bellis (Brussels)
On 15 April 2008, the Court of First Instance (hereinafter the “CFI”) annulled a Commission decision which had found State aid granted to a French book exporter compatible with the common market. The CFI ruled that the Commission had, firstly, erred in law by applying new Treaty rules (...)

The European Commission considers that the privatisation of Romanian tractor producer does not constitute a State aid (Tractorul)
DG REGIO (Brussels)
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DG COMP (Brussels)
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DG COMP (Brussels)
"State aid issues in the privatisation of public undertakings - Some recent decisions"* I. Introduction The general definition of State aid is set out in Article 87(1) of the EC Treaty, which prohibits ‘…any aid granted by a Member State or through State resources in any form whatsoever which (...)

Procedures

The UK Competition Commission proposes remedies for the groceries sector (Groceries Market)
Ofcom (London)
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Casino (Paris)
Summary The Competition Commission took almost two years to analyse the grocery market in the UK. This extensive investigation gives an insight into the purpose of Market Investigations under the Enterprise Act, and the ways in which they can complement more standard competition law. The (...)

The Swiss Comco issues a notice on business secrets expressing its view on criteria to be fulfilled for information to be qualified as business secrets and addressing certain specific questions (Aide-mémoire Secrets d’affaires/Merkblatt Geschäftsgeheimnisse)
International Committee of the Red Cross (Geneva)
On April 30, 2008 the Comco released a notice on business secrets (the "Notice"). The Notice expresses the Comco’s view on qualification criteria to be fulfilled for information to be qualified as business secrets and addresses certain specific questions. As a principle, the CA provides that (...)

The French Government proposes to abolish the principle of non-discrimination
Van Bael & Bellis (Brussels)
On 29 April 2008, the French Council of Ministers adopted a draft law aimed at modernizing the French economy. Among the proposed reforms, the draft law purports to abolish the principle of non-discrimination of Article L. 442-6, I, 1° of the French Commercial Code. According to this provision, (...)

The UK Competition Appeal Tribunal refuses permission to initiate follow-on claims for damages while an appeal is pending in the public enforcement case (Emerson Electric / Morgan Crucible)
University of East Anglia
Background The claimants (Emerson Electric Co, Valeo S.A., Robert Bosch GmbH, Visteon Corporation and Rockwell Automation) seek damages for the violation of Article 81(1) EC from the defendant (Morgan Crucible Company Plc) and the proposed defendants (Schunk GmbH, Schunk Kohlenstofftechnik (...)

The UK OFT pays damages to settle a defamation case (Morrisons)
Van Bael & Bellis (Brussels)
On 23 April 2008, the Office of Fair Trading (OFT) issued an apology to Wm Morrisons Supermarkets plc (Morrisons) and paid £ 100,000 in damages plus legal costs to settle a defamation case brought by the supermarket. The defamation case arose from a press release issued by the OFT on 20 (...)

The Cyprus Parliament passes new competition legislation
Antoniou McCollum (Nicosia)
The Protection of Competition Law 13(I) of 2008 was published in the Official Gazette of the Republic of Cyprus on April 18, 2008, date upon which it entered into force. It repeals all previous relevant Laws, namely Laws 207/1989, 111/1999, 87(I)/2000 and 155(I)/2000, thus becoming the main (...)

The new Slovenian Competition Act: Wider competences of the Competition Authority combined with higher fines on the road to better effectiveness (11 April 2008 Act)
Fatur Law Firm (Ljubljana)
The New Prevention of the Restriction of Competition Act (“New Competition Act”) compared with the old Competition Act introduces several novelties into Slovenian legal system. It includes precise definition of terms and measures used in the new Competition Act, brings the competition legislation (...)

An Italian administrative Court clarifies some issues regarding the commitments procedure (Vodafone)
Desogus Law Office (Cagliari)
The regional administrative court of Lazio (TAR) has upheld a controversial decision of the Italian Competition Authority (Autorità Garante della Concorrenza e del Mercato) regarding a number of anticompetitive practices carried out by TIM, Wind and Vodafone in the telecommunication markets. The (...)

The French Competition Council adopts procedural notice on commitments
Van Bael & Bellis (Brussels)
On 3 April 2008, following a public consultation launched in February 2008, the French Competition Council published a new procedural notice on commitment proceedings. The final text of the procedural notice largely confirms the main points of the draft version disclosed last February. The few (...)

The Bulgarian Supreme Administrative Court endorses a fine-tuning of the notion of an “undertaking” with respect to non-profit organizations (Geto Productions v CPC)
Kinstellar (Sofia)
By a judgment of early April this year, the Bulgarian Supreme Administrative Court (the “SAC”) upheld a ruling of the Bulgarian Commission for Protection of Competition (the “CPC”) that non-profit organizations could not be regarded as “undertakings” in the competition law sense of the word if they (...)

The European Commission issues white paper on damages actions for breach of the EC antitrust rules
DG COMP (Brussels)
,
DG HOME (Brussels)
,
DG COMP (Brussels)
"The White Paper on damages actions for breach of the EC antitrust rules"* I. Introduction On 2 April 2008, the European Commission adopted a White Paper on damages actions for breach of the EC antitrust rules (hereinafter ‘the White Paper’). It presents a set of recommendations to ensure that (...)

The European Commission publishes White Paper on damages actions for breach of EC antitrust rules
Linklaters (London)
,
Linklaters (London)
As foreshadowed in debates before the European Parliament on this topic, the Paper is accompanied by a detailed impact assessment. The Paper confirms the Commission’s thinking that neither Community action nor Member States’ action in isolation can address the obstacles to private enforcement and (...)

The Latvian Parliament amends national competition law
Van Bael & Bellis (Brussels)
On 16 April 2008, substantive amendments to the Latvian Competition Law entered into force with respect to merger control, abuse of dominant position and the powers of the Latvian Competition Council. In merger control, the notification requirement for a merger between parties’ with a combined (...)

Regulatory

The Paris Court of appeal confirms the NCA’s decision having fined two telecom operators for margin squeeze in the market for fixed to mobile lines calls (SFR-Cegetel / France Télécom)
Fréget (Paris)
,
Lagardère (Paris)
On 2 April 2008, the Paris Court of Appeal has found France Télécom and the SFR-Cegetel Group infringed Articles 82 EC and L. 420-2 of the French Code de commerce, as a result of the implementation of practices of margin squeeze, between April 1999 and the end of 2001, in the market for «Fixed to (...)

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