January 2006

Anticompetitive practices

The Brussels Court of Appeal confirms the functional interpretation of the notion of ’undertaking’ stressing that it is a relative concept (International Gemmological Institute)
Leuven University
Background information The International Gemmological Institute ‘IGI’ (one of the world’s largest independent gem certification and appraisal institute having its head office in Antwerp) filed a claim for injunction (on the basis of Art. 95 Unfair Trade Practices Law) before the Antwerp court (...)

The Slovenian Competition Authority declares null and void certain decisions of association of natural health spas decided together with the State having found them anticompetitive (ASNHS)
Fatur Law Firm (Ljubljana)
Zdravilisce Lasko (hereinafter, “Lasko”), a company, whose main business activity is tourism and health spa services, lodged on 23 September 2005 a complaint before the Slovenian Competition Authority against the Skupnost slovenskih naravnih zdravilisc(“the ASNHS”), a business association of 13 (...)

The Lisbon Court of Commerce reduces the fines applied by the Portuguese NCA’s for selling products at a price lower than its effective purchase price (Gestiretalho)
Cuatrecasas, Goncalves Pereira (Lisbon)
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Gleiss Lutz (Stuttgart)
On 18 January 2006, the Lisbon Court of Commerce partially admitted the appeal filed by Gestiretalho - Gestão e Consultoria para a Distribuição a Retalho, S.A. against the Portuguese Competition Authority. The Portuguese Competition Authority had found in 2003 (precise date not available) that (...)

A Portuguese Court substantially upholds the competition authority’s decision finding the association of veterinaries liable for imposing minimum fees (Portuguese Veterinary Medical Association)
Uria Menéndez (Lisbon)
An appeal was lodged by the Portuguese Professional Association of Veterinaries (“VMA”) after the Portuguese Competition Authority’s (the “PCA”) decision that found the VMA’s code of ethics to be in breach of Article 4(1) of Law 18/2003 of 11 June (the “Portuguese Competition Act”) and of Article (...)

The Portuguese NCA fines € 195.000 an association gathering local shipping agents for breach of Art. 81 EC and its equivalent national provisions (AGEPOR)
London School of Economics
In a brief decision, the Portuguese Autoridade da Concorrência imposes a € 195.000 fine to the local association gathering shipping agents (Associação dos Agentes de Navegação de Portugal, hereinafter “AGEPOR”) for breach of Article 81 EC. As was the case in previous decisions already commented in the (...)

The US Court of Appeals for the 9th Circuit holds that it is per se unlawful to fix a uniform price for the products combined in a joint venture (Dagher v. Saudi Refining)
Hughes Hubbard & Reed (Washington)
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US Chamber of Commerce
On January 10, 2006, the Supreme Court will hear Dagher v. Texaco, Inc., an antitrust case that presents the Court an opportunity to clarify issues of substantial importance to the formation and operation of joint ventures. The question presented is whether two joint venture partners, both of (...)

The US Supreme Court reverses a lower court’s decision clarifying competitive injury and secondary price line discrimination under the Robinson-Patman Act (Volvo Trucks / Reeder-Simco)
Mayer Brown (New York)
Competitive Injury and Price Discrimination in the United States* In Volvo Trucks North America, Inc. v. Reeder-Simco GMC, Inc., the Supreme Court provided guidance on whether, under the Robinson-Patman Act, a manufacturer may offer one dealer better prices than another dealer when those (...)

The US Supreme Court overturns a lower court decision for the plaintiff but reiterates the traditional method of proving secondary line price injuries under the Robinson-Patman Act (Volvo Trucks / Reeder-Simco)
Seattle University
The Robinson-Patman Act and Consumer Welfare: Has Volvo Reconciled them?* The Robinson-Patman Act is the black sheep of antitrust. Unlike the other antitrust laws, its fundamental goal is not to preserve competition in order to benefit consumers, but to limit competitive rivalry in order to (...)

Unilateral Practices

The Paris Court of Appeal limits the scope of the essential facilities theory by declining to consider abusive a refusal to access to a software (NMPP / MLP)
Simmons & Simmons (Paris)
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Hewlett Packard (Boulogne-Billancourt)
Background In 2003 Messageries Lyonnaises de Presse (MLP), a press distributor, filed a complaint with the French Competition Council (hereinafter "the Council") against Nouvelles Messageries de Presse Parisienne (NMPP) on the grounds that the latter was conducting an anti-competitive practice (...)

A Spanish Court dismisses an application brought by a pay-TV against the Spanish copyright collecting society for breach of Art. 82 EC (Canal Satélite Digital / DTS / SGAE)
London School of Economics
Canal Satélite Digital, S.L. (hereinafter, “Canal Satélite”) y DTS Distribuidora de Televisión Digital, S.A. (“DTS”) are two Spanish companies whose main shareholder is Sogecable, the main pay-TV operator in Spain (which develop its pay-TV activities under the commercial name Digital+). Canal Satélite (...)

A Spanish Commercial Court establishes that a collecting society did not abuse its dominant position by refusing to provide special rates to a pay-TV digital platform (Canal Satélite Digital / DTS / SGAE)
Hogan Lovells (Madrid)
Canal Satélite Digital, SL (hereinafter, “CSD”), the only pay-TV digital platform currently operating in Spain, and DTS Distribuidora de TV Digital (“DTS”) (together, the “Complainants”) lodged a claim against the collecting society Sociedad General de Autores y Editores (“SGAE“) for an alleged (...)

A Spanish Court clears the main national collecting society’s pricing practice (Canal Satélite Digital / DTS / SGAE)
European Court of Justice (Luxembourg)
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Garrigues (Brussels)
A Spanish commercial judge has made an interesting contribution to the series of cases under EC antitrust law concerning the pricing practices of national copyright-management societies (hereinafter, “collecting societies”). The two applicants are digital TV platforms offering their clients (...)

The Cyprus Competition Authority fines the telecommunications incumbent € 3.8 millions for abusive conduct in the mobile telephony market (Areeba / CYTA)
University of Tilburg - Center for Law and Economics (TILEC)
On 20 January 2006 the Cyprus Commission for the Protection of Competition (hereinafter C.P.C.), in one of its many decisions concerning the Cyprus Telecommunications Authority (hereinafter CYTA), found the latter liable for infringing Section 6(1) of the Protection of Competition Law of 1989 (...)

The UK telecommunications regulator closes an investigation under Art. 81 and 82 EC, and equivalent UK provisions, on alleged anticompetitive and abusive price of telephone services to hospital patients in spite of long duration exclusivity clause (Patientline / Premier)
Compass Lexecon (London)
Summary The Office of Communications (“Ofcom”) has decided to close an investigation under Articles 81 and 82, and equivalent UK national competition law, into the price of telephone services to hospital patients. Patientline plc (“Patientline”) and Premier Telecom Contracts Limited (“Premier”), (...)

The French Competition Authority decides to close the proceedings following an agreements between two phone companies regarding the use of commercial designations (France Télécom & Cégetel)
French Competition Authority (Paris)
Press Release published on the official website of the French Competition Authority. Use of "Numéro vert", "Numéro Azur" and "Numéro Indigo" commercial designations by competitors of France Télécom: Following an agreement between France Télécom and Cégétel, the provisions of which have been extended to (...)

The Polish Competition and Consumer Protection Court qualifies a body of the Catholic Church of "entrepreneur" and finds it guilty of abusing of dominant position on the funeral services market ("All Saints" Lublin Parish)
French National Research Agency - ANR (Paris)
The present judgment is the result of the judicial review of the decision of the President of the Polish Office of Competition and Consumer Protection (hereafter: “OCCP President”) on August 18, 2004. By this decision, the OCCP President declared that by restricting entrepreneurs from offering (...)

The Polish Competition Authorities examine the dominant position abuse of an authors’ association on the national music copyright collective management market (ZAiKS)
French National Research Agency - ANR (Paris)
On January 9th, 2006, the Competition and Consumer Protection Court (hereafter,“CCPC”) upheld the decision of the President of the Office of Competition and Consumer Protection (hereafter, “OCCP President”) condemning ZAiKS Authors’ Association (hereafter, ZAiKS) for abusing its dominant position on (...)

The Lithuanian NCA fines the State postal company for discriminatory practices (Lietuvos Patas)
Lithuanian Competition Council (Vilnius)
In January 2006 the Lithuanian Competition Council (“CC”) continued its onslaught on the alleged discriminatory practices of the former or still existing state monopolies (as reported earlier, in 2005 the national oil refinery received a record fine of approx. EUR 9.27 for violation of Article 82 (...)

A Polish daily sports newspaper is compelled by interim measure to cease to sell below a certain price while investigation for abuse of dominance pending (Marquard Media Poland / KTK Sport / Przeglad Sportowy)
Robert Jędrzejczyk i Wspólnicy Spółka komandytowa
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Patrol (Warsaw)
President of the Polish Office of Competition and Consumer Protection (Urzad Ochrony Konkuencji i Konsumentów) (UOKIK), 3rd January 2006, Case n° RKT-03/2006, Marquard Media Poland, KTK Sport, ‘Przeglad Sportowy’ Press Release Upon the motion of the company Katowickie Towarzystwo Kapita?owe (...)

The Polish Competition Authority adopts interim measures to protect competition in the national daily newspaper market for sports news (Marquard Media Poland, KTK Sport, Przeglad Sportowy)
French National Research Agency - ANR (Paris)
The interim measures decision commented here was rendered on January 3, 2006 by the Polish Competition Authority - the President of the Office of Competition and Consumer Protection (hereafter, “OCCP President”) - in order to prevent plausible serious and hard-to-remove threats to competition in (...)

The Court of Appeal of Athens examines the concept of the abuse of dominant position in the context of the mobile telephony market (2093/2006)
University of Reading
The facts An agent selling mobile phones lodged a complaint to the Court of First Instance of Athens against its supplier claiming that the latter’s decision to terminate their agreement constituted an anti-competitive unilateral behaviour breaching the relevant national competition law (...)

The Court of Appeal of Athens rejects an abuse of dominance complaint based on discriminatory treatment of retailers (Dec. 1572/2006)
Agora Trading
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University of Reading
Facts of the case The litigation in question arose between a wholesale cigarette manufacturer and one of its distributors in Greece. Since the early 90s the plaintiff had a small business selling cigarettes on bulk to other local shops. In 1996 the defendant terminated unilaterally the (...)

Mergers

The Bulgarian Commission for the Protection of Competition cleared a merger in the glass packaging and manufacturing markets subject to exit of the acquired undertaking from the market segment in which the acquirer is dominant (Yalos Holdings / Ivaglass Manufacturers)
Boyanov & Co. (Sofia)
The operation Yalos Holdings and Ivaglass Manufacturers are independent Cyprus holdings which control two glass manufacturing companies in Bulgaria - Droujba and Novo Staklo. Yalos Holdings proposed acquiring the whole of Ivaglass Manufacturers’ issued share capital. The markets The (...)

The EU Commission conditionally approves a merger in the telecommunications sector (O2 / Telefonica)
JG Associates (Brussels)
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DG COMP (Brussels)
"Mergers — Main developments between 1 January and 30 April 2006"* On 10 January the Commission cleared the proposed acquisition of UK telecommunications company O2 by the Spanish telecommunications company Telefonica. Telefonica and O2 are both telecommunication network operators. While (...)

The French Minister of Economics clears a horizontal merger in the markets of refrigerated warehouses with structural remedies (STEF-TFE/Cryologis)
University Paris II Panthéon‑Assas
The operation By a letter dated 6 January 2006, the French Minister of Economy, Finance, and Industry authorized the merger between two groups specialized in logistic and transport of fresh and frozen foods: STEF-TFE and Cryologistic. STEF-TFE acquired 100% share of Cryologistic Developpement, (...)

The Spanish Council of Ministries conditionally clears a merger in the natural gas sector, in spite of the Spanish Competition Authority’s opinion to block the transaction (Gas Natural / Endesa)
PwC (Madrid)
The operation The operation involved the acquisition of Endesa by Gas Natural. Gas Natural is the largest vertically integrated gas operator in Spain. in the Spanish electricity sector, Gas Natural has activities in the markets for generation and retailing to free customers. Gas Natural also (...)

The Finnish Competition Authority cleared a merger in the retail market for daily consumer items with remedies, including divestments and hold separate commitments (SOK/Spar)
Grant Thornton (Helsinki)
The operation On 4 January 2006, the Finnish Competition Authority cleared, in Phase II decision, a merger between SOK and Suomen Spar Oyj. These have overlapping operations in: (i) the retail market for daily consumer items; and (ii) the market for the procurement of daily consumer items for (...)

State Aid

The Court of First Instance of Roma admits State aid claim and grants interim relief prohibiting an undertaking - having received conditional clerance for State aid - to participate to a public tender for acquiring its competitor (AirOne/Alitalia)
EUJUS Law Firm (Rome)
Factual background Alitalia, after having received rescue aid, granted by the Italian Government and authorized by the European Commission, has participated in a public tender to acquire its competitor Volare. AirOne, competitor of Alitalia, brought a claim requesting the Court of First (...)

The Paris Administrative Court condemned the French State for the anticipated implementation of State aid in breach of Art. 88.3 EC (Salmon Arc-en-Ciel)
Schmitt Avocats (Paris)
By a decision of 23 January 2006, the Administrative Court of Appeal of Paris condemned the French State for having implemented a measure classified as State aid before the European Commission completes its examination procedure of the compatibility of the measure with the Common Market, in (...)

The French Administrative Court of appeal of Paris rejects a claim for damages brought by the beneficiary of an unlawful State aid (Salmon Arc-en-Ciel)
Sheppard Mullin (Brussels)
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European Court of Justice (Luxembourg)
Factual Background A Law of 12 April 1996 gives the State the ability to conclude framework agreements with professional branches in the textile, clothing, leather and shoe sector in order to maintain or develop employment in these sectors ("Borotra plan"). The agreements enable the (...)

The Greek Hellenic Conseil d’Etat rules that a legislative provision introduced in compliance with a judgment of the ECJ, ordering the recovery of incompatible aid granted in the form of tax exemptions, does not impinge upon the Greek Constitution, which prohibits the retroactive imposition of taxation (Undertaking X)
University of Tilburg - Center for Law and Economics (TILEC)
Factual Background: On 15.03.1988 the Greek Minister of Financial Affairs adopted Decision E. 3789/128, ratified by Law 1796/1988, which introduced a special single tax on the total income of certain undertakings in the financial year 1987. However, the proportion of earnings deriving from (...)

Regulatory

The French Competition Authority issues an opinion on the regulation of the audiovisual broadcasting market (ARCEP)
French Competition Authority (Paris)
Press Release published on the official website of the French Competition Authority. Regulation of the audiovisual broadcasting market: The Conseil de la concurrence in favour of ARCEP’s proposal to impose account unbundling requirements on TDF.* As part of the procedure for analysing (...)

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