February 2005

Anticompetitive practices

The French Competition Council fines € 75.000 a price resale maintenance agreement in the weapons and ammunition distribution sector on the basis of both Art. 81 EC and national provisions (Browning Winchester)
Gide Loyrette Nouel (Brussels)
Cahn Wilson (Paris)
The case had been brought before the Competition Council by an armourer, following the termination by BWF of its commercial relationship with the manufacturer, which leads the French firearms’ market along with Beretta-Benelli France. The Council considered that BWF had established an (...)

The French Competition Council makes a rigorous analysis of the criteria of effect on trade between Member States and a broad application of the notion of agreement under Art. 81 EC and national provisions (Browning Winchester)
Freshfields Bruckhaus Deringer (Paris)
Browning Winchester France (”BW”), a manufacturer of guns and ammunitions, had set up a distribution network in France by entering into “pilot resellers’ agreements” with several gunsmiths. Pursuant to these agreements signed between 1997 and 2001, the gunsmiths undertook to order minimum (...)

The UK Competition Appeal Tribunal unanimously dismissed the appeal in the roofing cartel appeal (Apex Asphalt)
European Commission - DG COMP (Brussels)
Factual background The OFT concluded that various roofing contractors, including Apex, had infringed the Chapter I prohibition under the Competition Act 1998 by colluding in relation to the making of tender bids for flat roofing contracts in the West Midlands. Apex was found to have (...)

The Polish Office for Competition fines a book publisher and distributors for entering into an anti-competitive price fixing agreement (Harry Potter)
Gajek i Wspólnicy. Adwokaci i Radcowie Prawni sp.k.
Patrol (Warsaw)
In November 2004, Harbor Point - the sole owner of the ‘Harry Potter’ publishing rights for Poland - and several wholesale books distributors agreed in a meeting on certain sales conditions. An agreement was later signed between the parties whereby they decided to sell ‘Harry Potter’ books for (...)

The French Competition Council rigorously applies the Sandoz and Bayer EC cases in the context of vertical non-contractual relations (Studio 26/Rossimoda)
Sheppard Mullin (Brussels)
Lni avocats (Paris)
Background Studio 26, a retail shop selling luxury brand shoes and leather products, lodged a complaint with the Competition Council alleging practices aiming at fixing the resale price of shoes by Rossimoda, an Italian subsidiary of LVMH. Studio 26 based its claim on letters received from (...)

The Swedish Market Court confirms the Competition Authority’s decision to fine concerted pricing and rebate scheme on the gasoline market and doubles the fine up to €12 million after a detailed assessment of effect on competition (Statoil / OK-Q8 / Shell / Preem / Norsk Hydro)
SNP Schlawien (Munich)
1. General interest of the case The case is interesting because it is the second most comprehensive cartel case - next to the asphalt cartel case - that has ever been dealt with by Swedish courts. It is also the first case where the Market Court has ruled on a concerted practice. On appeal (...)

The Swedish Market Court rules that the issuance and distribution of price lists by a trade association is caught by both EC and Swedish competition laws (VVS-I)
Cederquist (Stockholm)
On 9 February 2005 the Swedish Market Court rendered its decision regarding the trade association of VVS (heating, ventilation and air-conditioning) installation companies’ price list system. Although the case may not be revolutionary in its application of the substantial competition rules, it (...)

The Strasbourg Civil Court assesses the validity of a beer supply agreement in light of EC Regulations on vertical agreements (Kronenbourg)
Sheppard Mullin (Brussels)
Lni avocats (Paris)
Background On 16 March 1994, Mr. Besseyre who ran a coffee shop in Angers (central France) entered into a beer supply agreement with Kronenbourg under which he would exclusively purchase all of his beer requirements from Kronenbourg for a ten year period. In February 2002, Mr. Besseyre (...)

Unilateral Practices

The US Court of Appeals for the Third Circuit finds unlawful maintenance of dominant position on the market for the sale of prefabricated artificial teeth (Dentsply International)
Sheppard Mullin (Los Angeles)
Dentsply International, Inc. In Violation Of Section 2 For Monopoly Maintenance Through Use Of Exclusivity Clauses* In a reversal of the dismissal of the Department of Justice Antitrust Division (DOJ) complaint, alleging violations of Section 1 and 2 of the Sherman Act and Section 3 of the (...)

The Italian Competition Authority imposes for the first time interim measures on the basis of Art. 82 EC (Merck / Carbapenem)
Freshfields Bruckhaus Deringer (Rome)
Freshfields Bruckhaus Deringer (Rome)
The Italian competition authority (“Authority”) recently issued an interim decision against Merck & Co Inc (“Merck”) obliging it to license the manufacture of antibiotic Imipenem Cilastatina, the active ingredient in the manufacture of Carbapenemens. This decision is very interesting (...)

The Italian competition authority opens proceedings against three mobile telecommunications operators for alleged excessive interconnection fees pursuant to Art. 81 and 82 EC (TIM / Vodafone / Wind / TELE2 / TWC / Startel)
London School of Economics
TELE2 Italia (hereinafter, “TELE2”) lodged a complaint before the Autorità Garante della Concorrenza e del Mercato (“AGCM”) on 16 April 2004. A similar complaint was lodged some months later by ReteItaly, Trans World Communication Italia (“TWC”) and Startel. TELE2 has as its core activities (...)

The EU Court of Justice sets aside the General Court’s decision clarifying the role of complainants in Article 86 procedures (T-Mobile Austria)
University of Namur
"The Maxmobil Judgment: the Court of Justice clarifies the role of complainants in Article 86 procedures"* On 22 February 2005 the Court of Justice rendered a judgment in case C-141/02 P, Commission against T-Mobile Austria GmbH. The Court sets aside the judgment of the Court of First (...)

The EU Commission renders a decision on collective dominance under the European consultation mechanism on electronic communications in a case related to the market for wholesale mobile access and call origination in Ireland (Vodafone / O2 / Meteor)
European Commission - DG COMP (Brussels)
European Commission - DG CNECT (Brussels)
"First collective dominance cases under the European consultation mechanism on electronic communications"* In the first semester of 2005, the Commission dealt with two collective dominance cases in the electronic communications sector. Both cases were notified to it under the so-called (...)

The Czech Regional Court applies the intra-enterprise doctrine and cancels a decision of the Competition Authority condemning an undertaking for abuse of its dominant position in the oil refinery sector (Česká rafinérská)
Wolf Theiss (Prague)
In its decision of 18 February 2005, the Regional Court in Brno quashed an earlier decision of the Office for the Protection of Competition, in which the Office found that Česká rafinérská, a.s. (the most important oil refinery in the Czech Republic) had abused its dominant position when “for (...)

The German Competition Authority imposes further liberalisation of the postal market by prohibiting the incumbent to grant rebates for mail preparation services (Deutsche Post)
Freshfields Bruckhaus Deringer (Berlin)
Freshfields Bruckhaus Deringer (Berlin)
On 11 February 2005, the German Federal Cartel Office (“FCO”) prohibited Deutsche Post AG’s (“DPAG”) practice of granting rebates for mail preparation services for letters below 100gr exclusively to its large direct customers. Mail preparation includes the collection of letters, sorting them (...)

The German Competition Authority paves way for pre-postal services and rejects the State action defence raised against the application of Art. 82 EC (Deutsche Post)
White & Case (Miami)
On 11 February 2005, the German Federal Cartel Office (“FCO”) issued a decision in which it condemned the conduct of Deutsche Post AG in refusing access for providers of pre-postal services to certain mail delivery services provided by Deutsche Post and in denying discounts for those (...)

The Hungarian Competition Office clarifies the guidelines for predatory pricing (Auchan / Tesco)
Ferdowsi Legal (Tehran)
Gide Loyrette Nouel (Budapest)
Hungarian Competiton Office, 4 February 2005, Auchan/Tesco, Vj-168/2004/25 Article 21 of the Hungarian Act LVII of 1996 on the Prohibition of Unfair and Restrictive Market Practices (the “Competition Act”), largely harmonized with Community Law, prohibits the abuse of dominant position in a (...)


The German Bundeskartellamt cleared a merger in the market for waste disposal services subject to conditions and obligations, including the divestiture of shares and assets of both the acquirer and the target (Remondis/RWE Umwelt)
Baker McKenzie (Berlin)
The operation On 12 October 2004 Rethmann AG & Co. KG (“Rethmann”) notified the Bundeskartellamt of its proposed acquisition, via its subsidiary Remondis Unternehmesbeteiligungs GmbH, of all the shares of RWE Umwelt AG (“RWE Umwelt”). Rethmann is the controlling company of the Remondis (...)

The EU Court of Justice rules on the standard of judicial review in merger cases and clarifies the burden of proof upon the Commission in conglomerate mergers cases (Tetra Laval / Sidel)
Henderson Chambers (London)
On 15 February 2005, the European Court of Justice (ECJ) dismissed the European Commission’s appeal in the Tetra Laval/Sidel merger case. The ECJ’s judgment establishes two significant principles that apply beyond the facts of this particular case: • The judgment confirms that the Court of (...)

The EU Court of Justice dismisses the Commission’s appeal in a case concerning a merger in the packaging industry addressing the issues of conglomerate and vertical mergers (Tetra Laval / Sidel)
Sullivan & Cromwell (Brussels)
"Conglomerate and vertical mergers in the light of the Tetra Judgement"* Speech given at the International Forum on EC Competition Law organised by the Studienvereinigung Kartellrecht, Brussels 08/04/2005. The author would like to thank Michael König and Guillaume Loriot for their valuable (...)

The EU Court of Justice issues ruling against the prohibition decision imposing a duty on the Commission to exercise much greater care in the examination of complex mergers with potential conglomerate effects (Tetra Laval / Sidel)
Sheppard Mullin (Del Mar)
European Court Raises Bar On The European Commission’s Use Of Novel Theories In Merger Cases* On February 15, 2005, the European Court of Justice (“ECJ”) rejected an appeal by the European Commission against the judgment of the Court of First Instance (“CFI”), annulling the Commission’s (...)

The European Commission refers to the German competition authority the examination of a concentration in the cable networks industry (Ish/Iesy)
JG Associates (Brussels)
European Commission - DG COMP (Brussels)
"Mergers — Main developments between 1 January to 30 April 2005"* In February, the European Commission referred, pursuant to Article 9.2 of the Merger Regulation, the examination of the proposed acquisition of the North Rhine-Westphalian network cable operator ‘Ish’ by the Hessian cable (...)

The UK Competition Commission stresses the importance of the counterfactual in addressing competition concerns in merger cases (Arcelor / Corus)
Norton Rose Fulbright (London)
On 10 February 2005, the UK Competition Commission (the “CC”) cleared the acquisition by Arcelor SA (“Arcelor”) of the sales and marketing units of the UK hot rolled steel sheet piling (HRSSP) business of Corus Group plc (“Corus”). At the same time, Corus exited the HRSSP market, closing down (...)

The European Commission refers to the UK OFT the examination of a proposed acquisition in the private care home market for elderly (NHP/Blackstone Group)
JG Associates (Brussels)
European Commission - DG COMP (Brussels)
"Mergers — Main developments between 1 January to 30 April 2005"* In February, following the request of the UK Office of Fair Trading (‘OFT’), the European Commission decided to refer the acquisition of NHP plc by the US Blackstone Group to the UK competition authority for examination. Both (...)

State Aid

The Danish Competition Authority dismisses the complaint of a claimant alleging that one of its competitors active on the market received subsidies from a State-owned institute (Statens Serumsinstitut)
Honoré, Fallesen & Andersen - HFA Law (Copenhagen)
Factual Background The Danish Competition Authority (DCA) received a complaint from an actor on the market of vaccinations according to which the State-owned Serum Institute ("SSI") had subsidized a competing company, Udlandsvaccinationen I/S. The subsidies allegedly consisted in (1) SSI (...)

The Danish Competition Authority dismisses the claim of competitors seeking the recovery or the termination of the payment of aid granted from public funds to support certain commercial activities (Transporterhvervets uddannelsesråd)
Honoré, Fallesen & Andersen - HFA Law (Copenhagen)
Factual Background The Transport business’ Education Council (Transporterhvervets Uddannelsesråd, "TUR") is a sector-specific education committee that according to Danish law on work related training is committed to assessing the needs of relevant training courses, including the preparation (...)

The Spanish High Court of justice of Asturias rejects a claim for administrative liability based on illegality of State aid granted to a canary islands travel company (Fred Olsen / Transmediterránea)
Judicial Ethics Commission (Madrid)
The National High Court refused a claim for financial liability brought by Fred Olsen, S.A. against the State for the unlawful aid granted to Trasmediterránea in the operation of the Los Cristianos-San Sebastián de la Gomera and Santa Cruz de Tenerife-Las Palmas de Gran Canaria Line. This (...)

The Cypriot Commissioner for State aid control authorizes an aid scheme for the provision of access to research infrastructures abroad (Research infrastructures abroad)
Queen Mary University of London
Factual Background: On 24 January 2005, the Research Promotion Foundation notified to the Commissioner for State aid Control a draft scheme, entitled “scheme for the provision of access to research infrastructures abroad”. The scheme is based on the acknowledgment of the essential need that (...)

The Cyprus Commissioner for State Aid Control authorises an aid scheme aimed mainly at the improvement of working conditions and the reduction of workplace accidents in the construction industry (Aid scheme for construction companies)
Queen Mary University of London
Factual Background On 23 December 2004, the Cyprus Productivity Centre notified to the Commissioner for State Aid Control a draft aid scheme, entitled “aid scheme for construction companies concerning the upgrade of their equipment”. The scheme aims at the improvement of working conditions (...)


The French Competition Authority refers to a hard-core cartel to the public prosecutor (Ready-made concrete stairs)
Innovate Finance (London)
Article L. 420-6, paragraph 1, of the Commercial Code creates the infraction applicable to natural persons having taken part in an anticompetitive practice. This article states: “If any natural person fraudulently takes a personal and decisive part in the conception, organisation or (...)

The German Federal Court of Justice finds that an obligation in the form of an "endeavour" to purchase a certain number of cars is not block exempted under the old EC Regulation 1475/95 (Bezugsbindung)
Hengeler Mueller (Düsseldorf)
I. Facts of the case Renault Germany AG as the sole national sales company for Renault brand in Germany sells its motor vehicles through a selective distribution system in which authorized "A-dealers" enter into a dealership agreement with Renault Germany. On a second distribution level (...)

The German Federal Court of Justice holds that a car service agreement contains a minimum purchase requirement that violates article 81.1 and is void under article 81.2 EC (Bezugsbindung)
Background Until June 2001, the defendant was an authorized Renault dealer in Germany, belonging to the so-called A-category of dealers. In 1996, the defendant entered into a so-called Service Agreement with the claimant on the supply of new Renault vehicles and original spare parts. The (...)

The Maltese Commission for Fair Trading confirms that the jurisdiction of the Communications Authority did not exclude the Office of Fair Competition’s ability to investigate under the Competition Act (Datastream)
King’s College (London)
Superior Courts of Malta (Valletta)
In this case the Maltese Commission had to decide whether the fact that the Electronics Communications Authority of Malta had a regulatory jurisdiction in relation to various telecommunications services in Malta prevented the Office of Fair Competition from investigating a complaint by (...)

The Italian Supreme Court recognizes the right of consumers for claim for damages in case of violation of antitrust rules (Mario Ricciarelli/Unipol Assicurrazioni)
Freshfields Bruckhaus Deringer (Rome)
Freshfields Bruckhaus Deringer (Rome)
With this decision dated 4 February 2005, the Italian Supreme Court (Corte di Cassazione a Sezioni Unite) ruled over the possibility for consumers to claim for damages for the violation of antitrust rules. In particular, the Court had to decide over two related important issues regarding, on (...)


The French Competition Authority issues an opinion on the retail and wholesale markets for fixed telephony (ART)
French Competition Authority (Paris)
Press Release published on the official website of the French Competition Authority. In an opinion issued to the ART, the Conseil de la concurrence draws the Authority’s attention to the development of Voice over Broadband (VoB)offers and the potential distortion of competition caused by (...)

The European Commission publishes its first follow-up report to the 2004 report on competition in professional services
European Commission - DG COMP (Brussels)
European Commission
"Professional services: scope for more reform"* 1. Introduction and background The Commission’s work in the professional services sector continues with the publication of its first follow-up report to the 2004 Report ‘Competition in Professional Services’. The 2004 Report set out the (...)

The OECD holds a roundtable on structural reform in the rail industry
OECD - Competition Division (Paris)
Over the last 25 years the rail sector in virtually all OECD countries has undergone significant reform. These reforms were usually driven by inefficiency and poor performance within the rail sector and long-term loss of market share to other transport modes. The appropriate role for (...)