August 2008

Anticompetitive practices

A US District Court rejects the allegation according to which inducement by a drug wholesaler of a drug price publisher to inflate the wholesale price may constitute a per se violation (New England Carpenters Health Benefits Fund / McKesson)
Sheppard Mullin (Los Angeles)
Twombly Meets Leegin. Failure of Plaintiff to Allege “Plausible” Entitlement to Relief Constitutes Failure to Allege “Antitrust Injury.”* In New England Carpenters Health Benefits Fund v. McKesson Corp., 573 F.Supp.2d 431 (Aug. 26, 2008), the District Court for the District of Massachusetts (...)

A Lithuanian Administrative Court upholds the NCA’s findings of illegal information exchange among dairies (Dairies / Competition Council)
Lithuanian Competition Council (Vilnius)
On 21 August 2008 the Vilnius District Administrative Court (the “VDAC” or the “Court”) rejected the appeals brought by two dairy firms - AB Rokiðkio sûris (the “RS”) and UAB Marijampolës pieno konservai (the “MPK”) - against the Competition Council’s infringement decision finding them and five other (...)

The Haarlem District Court rules on a dispute between the Dutch collecting society and the UK collecting society regarding the licensing of portfolio (BUMA / PRS)
Van Bael & Bellis (Brussels)
In a judgment dated 19 August 2008 (published only recently), the District Court of Haarlem in the Netherlands ruled on a dispute between the Dutch collecting society BUMA (“BUMA”) and the UK collecting society Performing Right Society Limited (“PRS”), regarding the licensing by BUMA of PRS‘ (...)

The German Federal Court of Justice finds that a recommendation of the Association of German lottery operators violates the prohibition of Art. 81 EC and s. 1 of the Act Against Restraints of Competition (Lottoblock)
University of East Anglia (Norwich)
Background The regulatory power for lottery games and gambling in Germany falls within the competency of the 16 Federal States (Bundesländer). Lotteries that play a systematic jackpot or where the jackpot exceeds the amount of one Million Euro are organised and operated by the State-controlled (...)

The English High Court dismisses price fixing claim by bookmakers relating to collective exclusive broadcasting Licences (Bookmakers Afternoon Greyhound Services / Amalgamated Racing)
Shoosmiths (Thames Valley)
Background 1. The British horseracing industry is worth over £830 million annually. Since 1987, licensed betting offices («LBOs») have been allowed to show live coverage of racing from courses across the UK and Ireland. In 1987, the four largest British bookmakers founded Satellite Information (...)

The UK High Court clears joint and exclusive selling of racecourse TV rights (Bookmakers Afternoon Greyhound Services / Amalgamated Racing)
British Competition Authority - CMA (London)
In one of the most significant private action cases dealt with in a UK civil court in the past few years, the High Court has handed down its judgment in a dispute opposing half of UK racecourses and the main bookmakers. Justice Morgan dismissed betting shops’ claim, finding that the collective (...)

The UK Competition Authority announces criminal charges in the airline fuel surcharges cartel case (British Airways)
Innovate Finance (London)
On 7 August 2008, four men have been charged with cartel offences under the Enterprise Act in connection with the OFT’s criminal investigation into price-fixing of fuel surcharges for long haul passenger flights. They face up to five years in jail, paving the way for the UK’s most high-profile (...)

Unilateral Practices

The US District Court for the Eastern District of Arkansas dismisses based on the statute of limitations an antitrust complaint alleging a refusal to deal with a professional association of cardiologists expressed by an operator of five hospitals in Arkansas (Little Rock Cardiology Clinic / Baptist Health)
Sheppard Mullin (Los Angeles)
What Part of “No” Don’t You Understand? Unequivocal Refusal to Deal Triggers Statute of Limitations* Little Rock Cardiology Clinic v. Baptist Health, 573 F. Supp. 2d 1125 (E.D. Ark., August 29, 2008). Little Rock Cardiology Clinic (“LRCC”) is a professional association of cardiologists practicing (...)

The Slovak Competition Authority imposes a record fine for abuse of dominant position (Slovak Telekom)
Van Bael & Bellis (Brussels)
On 20 August 2008, the Slovak Antimonopoly Office (the “Office”) imposed a fine of SKK 885 million (approximately € 29.5 million) on Slovak Telekom for abusing its dominant position on the market for providing telecommunications infrastructure, particularly with respect to the local loop. Slovak (...)


The Dutch competition authority clears “merger to monopoly” of directory providers (European Directories - Truvo Nederland)
RBB Economics (The Hague)
Introduction After a Phase II inquiry, the Dutch competition authority (NMa) cleared on 28 August 2008 the acquisition of Gouden Gids, a Dutch on-line and print directory owned by Truvo, by European Directories, publisher of rival on-line and print directory De Telefoongids. The transaction (...)

The UK Office of Fair Trading (OFT) reviews a merger between two radio broadcasters and required radio station divestments to resolve competition concerns in the East and West Midlands (Global Media / GCap)
Vodafone (Newbury)
The operation Global Radio UK Limited (Global) is a privately-owned UK based commercial radio group with nine local radio stations that operate in London, the Midlands and the North of England. GCap Media plc (GCap) is a public company listed on the London Stock Exchange. It owns a (...)

The Portuguese Competition Authority announces the withdrawal of a merger notification in phase II in the market of refining, transport, distribution, marketing, exploitation and search activities of crude oil and its derivatives and natural gas (Petrogal / Fuel Stations)
Cuatrecasas, Goncalves Pereira (Lisbon)
Gleiss Lutz (Stuttgart)
On 16 January 2009, the Portuguese Competition Autority (Autoridade da Concorrência : “AdC”), pursuant to Article 112 (1) of the Code of Administrative Procedure, announced the lapsing of the notification proceedings regarding the acquisition, by the undertaking Petróleos de Portugal - Petrogal, (...)

The French Minister of economics clears a telecom merger without remedies after investigating possible coordinated effects and elimination of a maverick (Iliad / Liberty Surf)
RBB Economics (London)
Introduction On 23 October 2008 the French Minister of Economy (MoE) cleared the acquisition of Liberty Surf by Iliad without any conditions. Both Iliad and Liberty Surf (hereafter "Surf") are active in the Telecom sector, providing internet and landline telephone access in France. Surf is (...)

The German Federal Cartel Office conditionally clears a merger in the market for spin blast cleaning equipment (MEP/DISA)
Humboldt University (Berlin)
The operation On March 2008 the private equity company Mid Europe Partners (MEP) notified the German Federal Cartel Office (FCO) of its intended purchase of all of the shares of DISA Holding II (DISA). MEP is a independent private equity investment firm focused on Central and Eastern Europe, (...)

The Portuguese Competition Authority clears in phase II a merger in the soft drinks and bottled water sectors, subject to remedies including brand divestment and provision of filling services to other brands (Sumolis / Compal)
Uria Menéndez (Lisbon)
Uria Menéndez (Lisbon)
On 14 August 2008, the Portuguese Competition Authority (the “PCA”) adopted a merger control decision under the procedure set out in Law 18/2003 of 11 June (the “Portuguese Competition Act”), which approved the proposed acquisition of Compal by Sumolis, subject to certain conditions. Sumolis (...)

The Portuguese Competition Authority clears in Phase I a merger between two strong players of the food industry (Campofrío/Groupe Smithfield)
Cuatrecasas, Goncalves Pereira (Lisbon)
Gleiss Lutz (Stuttgart)
On 14 August 2008, the Portuguese Competition Autority (Autoridade da Concorrência : “AdC”) approved a merger control decision pursuant to Law 18/2003, of 11 June (the Portuguese Competition Act), of non-opposition to the merger between Campofrío Alimentación, S.A. (“Campofrío”) and Groupe (...)

The French Minister of Economy clears in Phase I a merger in the market for free newspapers with classified ads (Spir-S3G / JV)
In 2006, prior to the transaction at hand, the French Minister of Economy (heareafter the ‘Minister’) cleared the Spir-S3G/JV transaction, subject to undertakings, whereby two joint ventures between Spir Communication (‘Spir’) and the Société des Gratuits de Guyenne et Gasconne (‘S3G’) (together (...)

The Finnish Competition Authority investigates a proposed acquisition in the pay-TV market (C More Group AB / TV4 AB, Phase II)
Roschier (Helsinki)
Roschier (Helsinki)
The Finnish Competition Authority (“FCA”) has opened a Phase II investigation into the proposed acquisition of C More Group AB (“C More”) by TV4 AB (“TV4”), which belongs to the Bonnier group. The Bonnier group is an international media group based in Sweden. In Finland, the Bonnier group owns MTV (...)

The UK OFT clears aspects of a merger in the commercial radio sector on the basis of efficiencies (Global Radio UK / GCap Media)
Herbert Smith Freehills (Brussels)
On 8 August 2008, the Office of Fair Trading (“OFT”) announced that it had cleared the London aspects of the acquisition by Global Radio UK Limited (“Global”) of GCap Media plc (“GCap”) on the basis that the acquisition was expected to generate significant efficiencies that will benefit advertisers (...)

The European Commission clears an acquisition in the textiles industry (Itema/BarcoVision)
JG Associates (Brussels)
DG COMP (Brussels)
"Mergers: main developments between 1 May and 31 August 2008"* In August the Commission approved the proposed acquisition of BarcoVision of Belgium by the Italian company Itema. Itema produces textile machinery while BarcoVision manufactures sensors and other inputs for the textiles industry. (...)

The French Parliament amends the merger control procedure
Van Bael & Bellis (Brussels)
The provisions of the French law of 4 August 2008 aimed at modernising the French economy, which establish a new single Competition Authority and modify substantive rules on French merger control, have now come into force, with the publication of the implementing ordinance of 13 November 2008. (...)

The Chinese State Council publishes new merger notification thresholds under the Anti-Monopoly Law
Jones Day (Beijing)
Jones Day (Beijing)
Winston & Strawn (New York)
The State Council has published the long-awaited Regulation on Notification Thresholds for Concentrations of Undertakings (the « Regulation»). The new thresholds supplement the merger control rules under the Anti-Monopoly Law (« AML»), which contains no specific notification thresholds. The new (...)

State Aid

A German Administrative Court decides that if an aid measure infringes, EU law cannot automatically be challenged for recovery, and then the infringement justifies the suspension of any further payment of that aid to the beneficiary (Betriebsstätte des Tourismusgewerbes)
Delegation of the European Union to the United States (Washington D.C.)
European Commission (Brussels)
Brief description of the facts and legal issues The Potsdam Administrative Court holds that, if an aid measure that is found to formally infringe EC law cannot automatically be challenged for recovery, the infringement justifies the suspension of any further payment of that aid to the (...)

The European Commission partly authorises under EC Treaty State aid rules a German law to modernise the general conditions for capital investments (MoRaKG)
DG COMP (Brussels)
"The German Law to Modernise the General Conditions for Capital Investments (MoRaKG)"* I. Introduction The German parliament adopted the MoRaKG with the aim of giving tax incentives for risk capital investments. The law was subject to a standstill clause pending Commission approval. After the (...)

The Slovakian Constitutional Court issues a formal decision where it rejects a complaint for the review of the Ministry of Economy’s decision on refusal to grant State aid based on the act on investment incentives (X / Ministry of Economy
Nedelka Kubáč advokáti (Bratislava)
Ružička Csekes (Bratislava)
Ružička Csekes (Bratislava)
Factual background: The applicant in December 2006 submitted to the Ministry of Economy request for the provision of state aid for a financing of the investment project “Construction of the new production plant for the production of specially patented steel-girders for the construction market”. (...)

The European Commission adopts new general block exemption regulation on State aids (Regulation (EC) n°800/2008)
DG COMP (Brussels)
"The General Block Exemption Regulation (GBER): bigger, simpler and more economic"* I. Introduction One of the main objectives of the reform of state aid policy, as set out in the ‘State Aid Action Plan’ (SAAP) adopted by the Commission in 2005, is to create a simple, user-friendly and coherent (...)


The UK Competition Commission recommends break-up of airports operator (BAA)
Van Bael & Bellis (Brussels)
On 20 August 2008, the UK Competition Commission issued its provisional findings regarding competition issues relating to the UK airports owned and operated by BAA (Heathrow, Gatwick, Stansted and Southampton in England and Edinburgh, Glasgow and Aberdeen in Scotland). The Competition (...)

The Hungarian Competition Authority accepts commitments to cure concerns in the translation market (OFFI)
Van Bael & Bellis (Brussels)
Practising Law Institute (New York)
On 8 August 2008, the Hungarian Competition Authority (the "GVH") decided to accept commitments from OFFI, Hungary’s National Office for Translation and Attestation, in a case it initiated ex officio. OFFI, a limited liability company 100% owned by the Hungarian state, is by law granted the (...)

The Austrian Government presents an amendment of the national competition act
Van Bael & Bellis (Brussels)
At the beginning of August 2008, the Austrian Ministry of Economy and Labour presented a draft Act amending the Austrian Competition Act. This draft Act aims at adjusting the competences of the Austrian competition authority (BWB) in line with those of the European Commission and the German (...)


The Swiss Competition Commission proposes modification on telecommunications network access rate
International Committee of the Red Cross (Geneva)
In the aftermath of the Comco’s decision imposing a record fine of CHF 333 million to Swisscom Mobile for abusing from its dominant position on the mobile phone market through the application of excessively high termination rates, the question of the network access rate in the field of (...)

The UK Competition Commission (CC) publishes its Provisional Findings on competition in the UK airports markets
UK Competition Appeal Tribunal (London)
Linklaters (London)
Milbank, Tweed, Hadley & McCloy (London)
Competition Commission may require BAA to sell three airports The Competition Commission (CC) today published its Provisional Findings on competition in the UK airports markets. It has been investigating BAA airports following the OFT’s referral of the issue to it for a market investigation in (...)

The German Federal Court of Justice mainly upholds the decision of the Federal Network Agency and clarifies several important aspects in relation to the calculation of energy network access charges including the issue of disgorgement (“Vattenfall”)
Hengeler Mueller (Dusseldorf)
I. Background and history of the case The New German Energy Industry Act 2005 (EnWG) from 13 July 2005 introduced a regulated third party access together with the implementation of regulatory authorities for the energy sector. Therefore, since 2006 the Federal Network Agency (FNA - (...)

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