January 2007

Anticompetitive practices

The Italian Antitrust Authority fines more than 4 M € firms on the basis of Art. 82 EC for having exchanged information on the marine coatings market (Vernici Marine)
Desogus Law Office (Cagliari)
By a decision (Vernici Marine) dating to 25 January 2007, the Italian Antitrust Authority (AGCM) has condemned five firms - Boat Boero Marine and Protective Coatings Genova (“Boat”), Hempel Italy (“Hempel”), International Paint Italy (“IP”), Jotun Italia (“Jotun”) and Sigma Coatings (“Sigma”) - (...)

The French Competition Council fines a Belgian chocolate manufacturer for having imposed resale price maintenance for sales to works committees (Jeff de Bruges)
Coca-Cola (Paris)
By a decision dated January 27, 2007, the French Competition Council fined the Belgian chocolate manufacturer Jeff de Bruges for fixing retail prices concerning chocolate sales to works committees. The Belgian company Jeff de Bruges specializes in the distribution of chocolates and other (...)

The French Competition Council fines a chain store chocolate franchisor for a price fixing practices in sales to work councils (Jeff de Bruges)
Juliette Goyer Avocat
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French Competition Authority (Paris)
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DG COMP (Brussels)
French Competition Council (Conseil de la Concurrence), 24 January 2007, Decision n° 07-D-04, rregarding practices implemented by the Jeff de Bruges franchise network (“relative à des pratiques mises en œuvre par le réseau de franchise Jeff de Bruges”) In a decision dated 24 January 2007, the (...)

The French Competition Authority fines a chocolate manufacturer for having imposed on its franchisees retail prices to certain of its corporate customers (Jeff de Bruges)
UGGC Avocats (Paris)
Description of the impugned case Jeff de Bruges SAS limited the contractual freedom of its franchisees by imposing retail prices for certain corporate customers (comité d’entreprise). These sales with specific range of products were promoted through “books CE”, containing notably CE prices, (...)

The EU Commission fines a cartel in the gas insulated switchgear sector
DG COMP (Brussels)
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DG COMP (Brussels)
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Hong Kong Competition Commission
"Cartel fined in the gas insulated switchgear sector"* On 24 January the Commission adopted a prohibition Decision against members of the Gas Insulated Switchgear cartel with fines totalling some €750 million. The cartel from 1989 until the Commission’s inspections in May 2004, and was nearly (...)

The French Competition Authority sanctions several companies for having entered into an agreement in the sector for the collection and the treatment of wastes in Seine-Maritime (Veolia Propreté / Sita France)
French Competition Authority (Paris)
Press Release published on the official website of the French Competition Authority. Agreement in the sector for the collection and the treatment of wastes in Seine-Maritime: As part of a negotiated settlement, subsidiaries of Veolia Propreté and Sita France benefited from extenuating (...)

The Italian Antitrust Authority launches an inquiry on oil companies and raids premises searching for alleged anticompetitive parallelism pricing on the basis of Art. 81 EC (Prezzi dei carburanti in rete)
Freshfields Bruckhaus Deringer (Rome)
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Freshfields Bruckhaus Deringer (Rome)
At the end of January 2007, the Italian Antitrust Authority (IAA) launched an investigation under Article 81 of the EC Treaty against nine oil companies, alleging the existence of a price coordination mechanism in the Italian roadside petrol market. The undertakings involved include market (...)

The Lisbon Commerce Court confirms a Portuguese Competition Authority decision as regards the release of a minimum and maximum fees’ table by the Portuguese Medical Association (Ordem dos Médicos)
University of Lisbon
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Abreu Advogados (Lisbon)
On 26 May 2006 the Portuguese Competition Authority (PCA) fined the Portuguese Medical Association (Ordem dos Médicos) € 250.000 for imposing on its members minimum and maximum fees to be charged to their patients. The Association appealed against the decision to the Lisbon Commerce Court. The (...)

The Italian Antitrust Authority opens investigations on the basis of Art. 81 EC for alleged collusion in the determination of prices in the fuel market (Prezzi dei carburanti in rete)
Linklaters (Milan)
Italian Competition Authority (Autorità Garante della Concorrenza e del Mercato, “AGCM”), 18 January 2007, Case I681 - Prezzi dei carburanti in rete, Provvedimento n° 16370, Avvio istruttoria, Bollettino n° 2/2007 On 18 January 2007, the Italian Antitrust Authority (IAA) initiated a formal (...)

The French competition authority fines construction firms for rigging bids but considers joint submissions legal (Public water supply networks)
MAPP (Paris)
Summary of the case A systematic analysis of 99 bids submitted by firms participating to public tenders for the construction of waterpipes (for the supply of clean water or the disposal of waste water or rain water) in the department of Morbihan in Brittany aroused the suspicion of the French (...)

A Dutch Court holds that a non-compete clause ancillary to a merger infringes Art. 81 EC without examining whether the clause falls under Art. 81.3 EC (Drespa / Actuant a. o.)
DPA Legal (Amsterdam)
On 17 January 2007 a Court in Interlocutory Proceedings gave a judgment in the dispute between Drespa Holding B.V. (“Drespa Holding”), a manufacturer of electrotechnical products such as switches, dimmer switches and sockets, and Actuant Corporation (“Actuant”), which is also active on the market (...)

The Madrid Commercial Court of Appeal lifts an acquisition bid’s suspension in the gas supply sector on the basis that the agreement does not potentially infringe Art. 81.1 EC (Gas Natural / Iberdrola / Endesa)
European Court of Justice (Luxembourg)
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Garrigues (Brussels)
The "e-Competitions" bulletin has reported on a number of occasions on the aftermath of the takeover bid announced on 5 September 2005 by Gas Natural, the most important Spanish gas provider, for Endesa, Spain’s biggest utility. The present case is just another step in this complex saga, but an (...)

The Madrid Commercial Court of appeal lifts interim measures having blocked a key merger on the basis of alleged anticompetitive agreement (Gas Natural / Endesa)
BBVA (Madrid)
Background The Gas Natural vs. Endesa battle continues before the Spanish courts. On June 2006, a commercial court in Madrid “provisionally” halted the takeover bid launched by Gas Natural more than 17 months ago. This decision was adopted in the proceedings brought by Endesa to challenge the (...)

The Hellenic Competition Commission fines 1 M € bid rigging in the private security services sector (Security Forces/M. K. B./Wackenhut Security Hellas)
University College London
Hellenic Competition Commission (Epitropi Antagonismou), 11 January 2007, Security Forces LTD v. M. K. B. Security Services SA( ex Group 4 Securitas SA) and Wackenhut Security Hellas SA, Decision 325/V/2007 Factual Background “Security Forces LTD” was for four consecutive years the exclusive (...)

The Turkish Competition Board holds that a distribution agreement contains prohibited resale price maintenance (Frito Lay)
Erdem & Erdem (Istanbul)
By a decision dated 11 January 2007, the Turkish Competition Board (Hereafter “CB”) held that the international chips producer Frito Lay’s hand terminal system is prohibiting the distributors from determining the resale prices and therefore can not be considered in the scope of the Block Exemption (...)

The Irish National Competition Authority issues pro-competitive proposals for a reform of the private health insurance market
London School of Economics
Competition in the Private Health Insurance Market, Irish National Competition Authority Report, January 2007 (Executive summary) Context The Irish private healthcare market is conditioned by the aim it pursues, namely intergenerational solidarity. Intergenerational solidarity demands that (...)

Unilateral Practices

The Lithuanian Constitutional Court rules on the first Art. 82 EC case on alleged excessive fuel prices (Mažeikiu nafta II)
Lithuanian Competition Council (Vilnius)
Just when everybody thought that Mažeikiu nafta II - the first Article 82 EC case in Lithuania - could be put to rest for at least another two years, it was brought back to life as, on 31 January 2007, the Constitutional Court issued a ruling refusing to accept a reference from the Vilnius (...)

The Spanish Competition Appeal Tribunal annuls the 57 M € fine imposed by the Competition Authority to the telecommunications incumbent for an alleged abusive marketing campaign (Astel / Telefónica)
BBVA (Madrid)
Background On April 2004, the Spanish Competition Authorities imposed Telefónica a 57 million euro fine for an abusive practice consisting of hampering the process of pre-selection by consumers of alternative operators to Telefónica in fixed telephone services. At the time the decision was (...)

The German Federal Cartel Office accepts commitments offered by four major gas transmission companies ensuring the compatibility of long term gas supply agreements with Art. 81 & 82 EC and German competition law (Bayernga / Gas-Union / Saar Ferngas / Wingas)
Hengeler Mueller (Dusseldorf)
I. Background In 2003, the German Federal Cartel Office (FCO) began to investigate long term gas supply contracts between gas transmission companies and regional/local gas distributors. According to these investigations, in the German gas market as a whole approximately 75% of all gas supply (...)

The EU Commission analyzes the broadband wholesale market in Malta addressing the issue whether two access providers are enough (Maltacom / Melita Cable)
DG CNECT (Brussels)
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DG CNECT (Brussels)
"Broadband competition in Malta: are two access providers enough?"* The current Regulatory Framework promotes the establishment of competitive markets for electronic communication networks and services. The market conduct and performance we see today are, however, often based on service (...)

The UK Energy Regulator finds no abuse of dominance in the refusal to supply meter data services to competing electricity suppliers (EDF Energy)
Compass Lexecon (London)
The Office of Gas and Electricity Markets (“Ofgem”) the gas and electricity regulator in Great Britain has decided that EDF Energy (“EDFE”) has not infringed Article 82 of the EC Treaty or section 18 (the “Chapter II prohibition”) of the Competition Act 1998 by refusing to supply other suppliers of (...)

The Belgian Competition Council rejects a request for interim measures against alleged abuse of dominant position on the beer market (Inbev / Jupiler)
VMMa (Gent)
The Belgian Competition Council has been seized on an alleged abuse of dominante position by Inbev, the biggest brewery of Belgium, owner of the Jupiler brand. In the first trimester of 2006 Inbev decided to introduce new Jupiler glasses. According to the claimants, the Flemish and Walloon (...)

The UK Gas and Electricity Market Authority rejects alleged abusive data withdrawal in the electricity market (EDF Energy)
Quebec Department of Justice (Quebec City)
This is a decision of the UK Gas and Electricity Markets Authority (the Authority) rejecting allegations of abuse of dominance following EDF Energy’s (EDF) decision to cease offering data retrieval (DR), data processing (DP) and data aggregation services (DA) (data services) to competitors. The (...)

The Paris Court of Appeal rejects the complaint of a French wholesaler-exporter of pharmaceutical products and allows quotas and refusals to sell (Pharma-Lab)
Total (London)
On 23 January 2007, the Paris Court of Appeal (hereinafter the “Court”) issued a judgment in which it dismissed an appeal filed against a decision rendered by the French Competition Council (the “Council”) pursuant to Articles 81 and 82 EC and national provisions similar to those articles. In this (...)

Mergers

The Latvian Competition Council clears a merger confirming a dominant position in the power supply market (Fortum Holding / Vattenfall Latvia)
Klavins Ellex (Latvia)
I. Introduction On 31 January 2007, Latvian Competition Council adopted a decision allowing a merger resulting from a sale of 100% SIA “Vattenfall Latvia” (Vattenfall Latvia) shares to Fortum Holding B. V. (Fortum) by Vattenfall AB. The Council concluded that as a result of the merger a company (...)

The French Supreme Administrative Court annuls a merger authorisation in the press sector (Société France Antilles)
Fréget (Paris)
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International Chamber of Commerce (ICC)
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Lagardère (Paris)
French Administrative Supreme Court (Conseil d’État), 31 January 2007, Société France Antilles, n° 294896 Introduction On 31 January 2007 the French Supreme Administrative Court (Conseil d’État) handed down a judgement annulling a merger authorisation in the press sector. This decision is worthy of (...)

The Portuguese Competition Authority clears a merger between a pharmacist and a wholesale and retail pharmacy group (Alliance / Unichem)
Morais Leitão, Galvão Teles, Soares da Silva & Associados (Porto)
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Morais Leitão, Galvão Teles, Soares da Silva & Associados (Porto)
I. Introduction On December 23, 2005, the Portuguese Competition Authority (PCA) was notified of a concentration under which Alliance Santé Europe, S.A. (Alliance Santé), Farmindústria – Investimentos, Participações e Gestão, S.A. (Farmindústria) and José de Mello Participações II, SGPS, SA (JMP) (...)

The Maltese Office for Fair Competition clears a merger in the market for the provision of digital terrestrial television transmission services subject to the surrender of a license (Maltacom/Multiplus)
Camilleri Preziosi (Malta)
The operation By means of a decision of the 26th January 2007, the Director of the OC cleared a concentration, subject to the surrender by the notifying party, of a DTTV licence. The concentration consisted of an acquisition of sole control over Multiplus Limited (a company providing DTTV (...)

The Turkish Competition Board clears a merger in the chemical commodities sector holding non-competition and non-employment provisions as ancillary restraints (Arkema France/United Phosphorus)
Çakmak Avukatlik Bürosu
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Çakmak Avukatlik Bürosu
Turkish Competition Board (Rekabet Kurulu Karari), 24 January 2007, Application filed by United Phosphorus Limited for the acquisition of all of the Cerexagri Group shares, Case n° 2006-3-156, Decision n°07-09/47-14 In December 2006, United Phosphorus Limited (“UPL”) has applied for the approval (...)

The UK Competition Commission cleared a merger in the markets for live music venue management and live music promotion services, subject to structural remedies (Hamsard/Academy Music)
Geneva University
The operation On 23 January 2007, the UK Competition Commission (CC) cleared the proposed acquisition of a controlling interest in Academy Music Holdings Limited (Academy) by Hamsard 2786 Limited (Hamsard), subject to remedies in the form of the sale of two of its venues. The acquisition (...)

The German Federal Court of Justice clarifies to what extent acquisition of a licence may be subject to merger regulations and prohibits a concentration in the science magazines press market (National Geographic)
Hengeler Mueller (Dusseldorf)
I. Background and history of the case In March 1999, the German publishing company Gruner + Jahr and the Spanish based publishing company RBA Publicaciones (RBA) entered as joint licensees into a licence agreement with the US based National Geographic Society, publisher of the English edition (...)

The German Bundeskartellamt cleared a merger in the bookselling sector subject to the divestiture of a bookshop (Weltbild / Hugendubel / Weiland)
Baker McKenzie (Dusseldorf)
The operation On 22 September 2006, DBH Buchhandels GmbH & Co. KG (“DBH”), a joint venture of Verlagsgruppe Weltbild GmbH (“Weltbild”) and Heinrich Hugendubel GmbH & Co. KG (“Hugendubel”), notified the Bundeskartellamt of its proposed acquisition of 50.1% of the shares of (...)

A Dutch Bill on media concentrations introduces plurality check
Netherlands Authority for Consumers & Markets (The Hague)
In December 2006, a bill on media concentrations was presented. The bill proposes a plurality check for media concentrations, irrespective of merger control thresholds. In order to safeguard the plurality of the media, the bill prohibits media concentrations which: amount to a (...)

The German Bundeskartellamt cleared a merger in the retail market for building supplies subject to remedies including the divestiture of four stores (Praktiker/Max Bahr)
Baker McKenzie (Dusseldorf)
The operation On 12 September 2006 Praktiker AG (“Praktiker”) notified the Bundeskartellamt of its proposed acquisition of the Max Bahr Gruppe (“Max Bahr”). Praktiker is a retailer operating 275 large building supplies and do-it-yourself (DIY) stores throughout Germany. Max Bahr is a retailer of (...)

The UK Competition Appeal Tribunal allows extension of time for merger filing admitting the existence of ’exceptional circumstances’ (BSkyB)
Kasliwals & Associates
Introduction Grant of extension of time for filing a review under section 120 of the Enterprise Act, 2002 (‘The Act’) in the BSkyB/Competition commission case sets an impeccable precedent incorporating the first principle established under the domain of ‘exceptional circumstances’, ‘the (...)

The Spanish National Competition Authority opens a merger phase II investigation in the brewing sector (Mahou-San Miguel / Cervezas Alhambra)
BBVA (Madrid)
Introduction In November 2006, Mahou-San Miguel (GMSM), a Spanish brewing company, notified the Spanish first-tier competition authority (Servicio de Defensa de la Competencia, SDC) the acquisition of control over Alhambra, a local brewer operating mainly in the Andalusia region. Alhambra has (...)

State Aid

The Spanish National Audience authorises partial recovery of training aid whose use had not been justified by way of receipts by the beneficiary (Finafor, S.L.)
Hogan Lovells (Madrid)
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Allianz (Brussels)
Factual Background: The National Institute of Employment ("NIE") granted a State aid to a company (the “Beneficiary”), which committed itself to the implementation of a training plan (the "Training Plan"). The State Aid was paid in advance and following that payment, the NIE found out that the (...)

The Danish Competition Authority finds that the municipality of Gentofte had not paid a settlement price to the private caterer which was lower than the costs of the competing municipal service provider (Fritvalg - Gentofte Kommune)
Bech-Bruun (Copenhagen)
Factual Background A private company complained to the Danish Competition Authority (DCA) about the municipality of Gentofte paying too low a price for the services provided by private companies in the field of home care. In particular, the complainant did not understand why the prices had (...)

The Rotterdam District Court declares nul and void public loan guarantees holding that they constitute State aid that should have been notified to the EC (Port of Rotterdam)
Visser, Schaap & Kreijger
In two recent decisions, the Rotterdam District Court held that loan guarantees issued by the Port of Rotterdam (part of the municipality of Rotterdam) were null under the Dutch Civil Code provisions on nullity, as the guarantees were state aid that should have been notified. Background In (...)

The Lithuanian Supreme Administrative Court upholds the decision of the lower court that the applicant did not meet the requirement for the ownership of the capital necessary to qualify the measure as State aid (Selos Parkas)
Raidla Lejins & Norcous
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Valiunas Ellex (Vilnius)
Factual background On 10 June 2004 the Minister of Economy adopted order No 4-222 establishing “Guidelines for applicants to receive financial support from the structural funds of the European Union according to the Lithuanian general programme document for 2004-2006” (the “Guidelines”). The (...)

The Amsterdam Court of Appeal refuses to order the Municipality to suspend an investment which was liable to constitute a State aid, although the Commission has started an Art. 88.2 EC procedure (UPC/Gemeente Amsterdam)
European Commission - DG HR (Brussels)
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European Court of Justice (Luxembourg)
Court of Appeal of Amsterdam (Gerechtshof Amsterdam), 18 January 2007, UPC Nederland B.V. v Gemeente Amsterdam (Municipality of Amsterdam), Decision n° AZ6508, Case 1252/06 KG UPC is an undertaking which provides telecommunications services, such as television, telephony and broadband (...)

The Dutch Court of Appeal allows a municipality to continue its investment in a local telecommunications network, despite the European Commission having commenced an Art 88.2 EC procedure (UPC Nederland)
Hogan Lovells (Amsterdam)
Factual Background In April 2004, the Municipality of Amsterdam informed the European Commission of its intention to roll-out a telecommunications network in Amsterdam. For that purpose, a new legal entity was incorporated by the Municipality of Amsterdam. The project was subsequently notified (...)

Procedures

The Czech Supreme Administrative Court concludes that the NCA may investigate infringements of competition law in the telecommunications sector (Ceský Mobil/Radiomobil)
Czech Ministry of Justice (Prague)
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Czech Ministry of Justice (Prague)
By a judgment rendered on 31 January 2007, the Czech Supreme Administrative Court overruled an earlier judgment by the Regional Court in Brno and stated that the Czech Office for the Protection of Competition (the “Office”) has competence to investigate into and impose sanctions for infringements (...)

The French Competition Council sets the boundaries of the transmission of information from a criminal Court (Le Foll)
Innovate Finance (London)
French Competition Council (Conseil de la Concurrence), 15 December 2005, Decision n° 05-D-69, relating to anticompetitive practices set up in the Seine-Maritime road work sector (relative à des pratiques anticoncurrentielles relevées dans le secteur des travaux routiers en Seine-Maritime) Paris (...)

A French Court refuses to grant damages to alleged victim of the vitamin cartels (Juva/Hoffmann La Roche)
Jones Day (Paris)
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Freshfields Bruckhaus Deringer (Paris)
On 26 January 2007, the Paris Commercial Court dismissed one of the still infrequent private actions claiming compensation for damage allegedly suffered as a result of anticompetitive behaviour. In a decision dated 21 November 2001, the European Commission imposed fines totalling €855.23 (...)

An UK Competition Court grants interim relief in ’follow on’ damages claim (Healthcare at Home/Genzyme)
King’s College (London)
The Competition Appeal Tribunal’s (the “CAT”) judgment in Healthcare at Home Ltd v Genzyme Limited, 15 November 2006, concerned a claim for “interim payment” in proceedings brought by Healthcare at Home (the “claimant”) against Genzyme Limited (“Genzyme”). Under section 47A of the UK Competition Act (...)

An overview of Romanian competition regime: Some substantive divergence with the EC competition legislation remain...
Peli Filip (Bucharest)
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Musat & Asociatii (Bucharest)
Competition Law n° 21/1996, Romanian Official Journal, Part.I, n° 88, 30 April 1996, with subsequent amendments and completions Romanian Competition Council (Consiliul Concurentei), 22 December 2004, Decision n° 329, Kronospan SA Consiliul Concurentei, Decizia n° 329/22.12.2004, referitoare la (...)

Regulatory

The European Commission identifies in its sector inquiry widespread competition barriers in retail banking
DG COMP (Brussels)
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DG COMP (Brussels)
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DG COMP (Brussels)
"Sector Inquiry Identifies Widespread Competition Barriers in Retail Banking"* On 31 January 2007 the European Commission published the Final Report of its sector inquiry into European retail banking markets. The inquiry has identified a number of deficiencies in the way these markets work (...)

The EU Commission publishes final report on the sector inquiry into gas and electricity markets in the EU
DG COMP (Brussels)
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DG COMP (Brussels)
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Prometheus Public Affairs
"The Energy Sector Inquiry: conclusions and way forward"* I. Introduction On 10 January 2007, after an 18 month investigation, the Commission published the final report on the sector inquiry carried out by DG Competition into the gas and electricity markets in the EU (Commission Communication (...)

The European Commission publishes results of its sector inquiry into gas and electricity addressing the issue of effective unbundling of energy transmission networks
Oxera (Brussels)
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DG COMP (Brussels)
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DG SANCO (Brussels)
"Effective unbundling of energy transmission networks: lessons from the Energy Sector Inquiry"* I. Introduction During the late 1990s, the European Union decided to fundamentally change the basis for the provision of electricity and gas from a monopolistic to a competitive market framework. (...)

The Bundeskartellamt has started to publish gas prices in Germany in order to strengthen competition and bring down prices charged to consumers
Heuking Kühn Lüer Wojtek (Hambourg)
Since January 2007, the German Bundeskartellamt (BKartA) has published gas prices charged by local gas suppliers to consumer households in Germany on its website. This article deals with the background, aims and legal issues of this new practice in the gas supply sector. 1. INTRODUCTION 1.1 (...)

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