January 2017

Anticompetitive practices

The UK High Court concludes that multilateral interchange fees were not restrictive of competition and can be exempted under article 101(3) (MasterCard)
DLA Piper (London)
On 30 January 2017, the United Kingdom (UK) High Court handed down a judgment in favour of MasterCard in a damages claim brought by UK retailers (including Next, Acadia Group and Asda). The claimants alleged that MasterCard’s multilateral interchange fees (MIFs) were illegally restrictive of (...)

The EU Court of Justice delivers fourteen decisions on appeals against judgments of the General Court in a cartel case, rejecting all appeals except two (Bathroom Fittings and Fixtures cartel)
Van Bael & Bellis (Brussels)
Bathroom fittings and fixtures cartel case – concept of single and continuous infringement The concept of single and continuous infringement was developed by the Commission to impute liability to undertakings which had not been involved in every single cartel contact or had not engaged in every (...)

The German Competition Authority issues a a draft guidance note on vertical price fixing in the brick-and-mortar food retail sector
German Competition Authority (Bonn)
Publication of guidance note on the prohibition of vertical price fixing in the food retail sector - public consultation* oday the Bundeskartellamt published a draft guidance note on vertical price fixing in the brick-and-mortar food retail sector. Interested parties are invited to submit (...)

The German Federal Cartel Office publishes a draft guidance note on the prohibition of vertical price fixing in the brick-and-mortar food retail sector
Van Bael & Bellis (Brussels)
On 25 January 2017, the German Federal Cartel Office (“FCO”) published a draft guidance note on the prohibition of vertical price fixing in the brick-and-mortar food retail sector. The guidance note follows proceedings concluded in December last year, in which the FCO imposed fines amounting to € (...)

The Irish Competition and Consumer Protection Committee acts to stop potentially anti-competitive conduct by private landlords (IPOA)
Economic & Social Research Institute
Two cheers for the Ireland’s Competition and Consumer Protection Commission action against potentially anti-competitive conduct by private landlords* Introduction With great alacrity Ireland’s Competition and Consumer Protection Commission (CCPC) has intervened successfully to hold the Irish (...)

The EU Court of justice recalls that where the liability of the parent company is purely derivative of that of its subsidiary the liability of the parent company may not exceed that of its subsidiary (Methacrylates cartel)
Van Bael & Bellis (Brussels)
Under settled EU case law, a parent company may be held liable for the anticompetitive behaviour of its subsidiary, even if the former has not directly participated in the infringement, provided the parent company is in a position to exercise decisive influence over its subsidiary and has, in (...)

The Indian Competition Authority fines 7 cement manufacturers for bid rigging (State of Haryana / Cement Manufacturers)
Vaish Associates (New Delhi)
CCI imposes penalty of INR 205 Crores on 7 cement manufacturers for bid-rigging in supply of cement to Director General (Supplies and Disposal), Haryana* CCI by its order dated January 19, 2017 has imposed a penalty for bid-riggingon 7 cement manufacturers, viz. Shree Cement Limited, Ultratech (...)

The Indian Competition Authority grants a 75% reduction in penalty in a cartel case in the railway sector, after applying the leniency program (Pyramid Electronics)
Shardul Amarchand Mangaldas (New Delhi)
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Shardul Amarchand Mangaldas (New Delhi)
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Shardul Amarchand Mangaldas (New Delhi)
Introduction The Competition Commission of India (CCI) in the first ever decision involving leniency in a cartel case (Suo Moto Case No. 03 of 2014 – In Re: Cartelization in respect of tenders floated by Indian Railways for supply of Brushless DC Fans and other electrical items), published on (...)

The Indian Competition Authority approves its first leniency application and reduces by 75% the fine imposed on the leniency applicant in a bid-rigging case in the railway sector (Pyramid Electronics / Kanwar Electricals / Western Electric and Trading Company)
Vaish Associates (New Delhi)
Competition Commission of India (CCI) decides its first application for leniency in Cartels* CCI by its order dated January 18, 2017 decided its first leniency application in favour of the applicant by reducing the fine imposed by 75%. The application was filed on 10 March 2015 by one of the (...)

The EU Court of Justice confirms the EU Commission decision on animal feed phosphates cartel (Timab Industries)
DG COMP (Brussels)
Antitrust: Commission welcomes Court of Justice judgment on Animal Feed Phosphates cartel* The European Commission welcomes today’s judgment by the EU Court of Justice dismissing in its entirety Timab’s appeal against an earlier General Court ruling. The General Court (case T-456/10) had upheld (...)

The German Competition Authority fines furniture manufacturers for vertical price fixing (aeris)
German Competition Authority (Bonn)
Bundeskartellamt imposes fines on account of vertical price fixing in the sale of furniture* The Bundeskartellamt has concluded its cartel proceedings against furniture manufacturers for enforcing resale price maintenance on retailers. Fines totalling 4.43 million euros were imposed on the (...)

The U.S. FTC and DOJ publish revised antitrust guidelines for the licensing of intellectual property
Weil, Gotshal & Manges (New York)
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Weil, Gotshal & Manges (Washington)
FTC and DOJ finalize revised Antitrust Guidelines for the Licensing of Intellectual Property* On January 12, 2017 the DOJ and FTC jointly issued final updated Antitrust Guidelines for the Licensing of Intellectual Property (Updated IP Guidelines). Acting Assistant Attorney General Renata (...)

The EU General Court orders the European Union to pay damages for excessively long court proceedings for the first time (Industrial bags cartel)
Van Bael & Bellis (Brussels)
On 10 January 2017, the General Court (“GC”) issued a judgment in which it ordered the European Union to pay Gascogne and Gascogne Sack Deutschland (“Gascogne”) a total of about € 57,000 in damages for the excessive duration of previous proceedings before the GC in connection with the Industrial (...)

The Indian Competition Appellate Tribunal (COMPAT) rejects application for complete stay of penalty in cement cartel case (Binani Cement / Builders’ Association of India)
Vaish Associates (New Delhi)
Competition Appellate Tribunal (COMPAT) rejects the application of Binani Cement for complete stay of penalty in Cement Cartel appeals* COMPAT by its order dated January 9, 2017 has rejected the application of Binani Cement for complete stay of penalty while its appeal against the penalty (...)

The Turkish Competition Board concludes its investigation against an online booking platform (Booking.com)
Erdem & Erdem (Istanbul)
Introduction The Competition Board (“Board”) concluded its investigation with regard to the booking services provided by Booking.com B.V. (“Booking.com”) and by Bookingdotcom Destek Hizmetleri Limited Liability Company. During its investigation, the Board has evaluated whether Articles 4 and 6 of (...)

Unilateral Practices

The Indian Competition Authority finds no abuse of dominance in the market for industrial bearings (Shah Associates / Timken India)
Vaish Associates (New Delhi)
Background and Allegation Information was filed before the Competition Commission of India (“CCI/Commission”) by M/s Shah Associates (“Informant”) alleging abuse of dominance by Timken India Limited (“Timken”). The informant is engaged in the business of trading in bearings, gear boxes and chains (...)

The EU Commission seeks feedback on commitments proposed by an electronic commerce company in e-book investigation (Amazon)
DG COMP (Brussels)
Antitrust: Commission seeks feedback on commitments offered by Amazon in e-book investigation* The European Commission is inviting comments on commitments offered by Amazon to address competition concerns relating to parity clauses in contracts with publishers. The clauses may breach EU (...)

The Italian Administrative Court of Lazio partially upholds the fine imposed on the company managing the Milan airports for abusive practices in the general aviation sector (SEA)
Desogus Law Office (Cagliari)
Introduction By an appeal judgment released in the SEA v AGCM case , the Administrative Court for the Region of Latium (the Court) has partially upheld the challenged decision made by the Italian Competition Authority (ICA) in Cedicor/SEA , by which the ICA fined the manager of the Milan (...)

The California Southern District Court receives a claim from a smartphone manufacturer against one of its suppliers over allegedly abusive wireless patents (Apple / Qualcomm)
DLA Piper Weiss-Tessbach (Vienna)
Apple and Qualcomm proceeding* In January 2017 Apple filed suit against Qualcomm over its allegedly abusive licensing practices regarding wireless patents. Apple filed patent, antitrust and breach of contract claims against Qualcomm; this could result in damages of billions of dollars. (...)

The Supreme Administrative Court of Bulgaria quashes the Competition Authority’s decision on an abuse of dominance in the energy sector, due to a different economic analysis (Energo Pro)
Tsvetkova Bebov Komarevski (Sofia)
The Supreme Administrative Court of the Republic of Bulgaria seating in 3-member panel (the “Supreme Administrative Court”, the “Court or the “Supreme Court”) repealed the decision of the Bulgarian Commission for Protection of Competition (the “Commission”) by virtue of which the Commission imposed (...)

The German Competition Authority closes its proceeding against companies operating on the digital audio-books market suspected to abuse of their dominance (Apple and Amazon)
German Competition Authority (Bonn)
Bundeskartellamt closes proceedings against Audible/Amazon and Apple* The Bundeskartellamt has closed its administrative proceedings against Audible.com – a subsidiary of Amazon – and Apple Computer Inc. Following a complaint by the German Publishers and Booksellers Association (Börsenverein des (...)

The Spanish Competition Authority clears a dual pricing system (Pfizer / Cofares)
Callol, Coca & Asociados (Madrid)
On 19 January 2017 the Spanish Competition Authority (SCA) issued a decision clearing PFIZER of antitrust charges and blessing PFIZER’s dual pricing system (SCA Decision). In 2009, the SCA decided (First Decision) to close the antitrust investigation against COMPAÑÍA FARMACÉUTICA ESPAÑOLA, S.A. (...)

The Northern District Court of California Judge’s expresses possible abuses in asserting legal privilege (Qualcomm / FTC)
DLA Piper Weiss-Tessbach (Vienna)
U.S. Qualcomm Case Update: Privilege Assertions* On 22 March 2018, in a court hearing in the Qualcomm case, Judge Koh expressed her concern over possible abuses in asserting legal privilege over certain documents. In January 2017, the U.S. FTC sued Qualcomm, alleging that the company (...)

The EU Court of Justice publishes details of a request by a Portuguese Court for a preliminary ruling regarding discriminatory pricing (Serviços de Comunicações e Multimédia)
Van Bael & Bellis (Brussels)
On 16 January 2017, details of a request by a Portuguese court for a preliminary ruling from the Court of Justice of the European Union (“ECJ”) were published in the Official Journal on questions relating to abusive discriminatory pricing under Article 102(c) TFEU. The request was issued in (...)

The Indian Competition Authority opens investigation into abuse of dominance by a local development authority (Sudarshan Kumar Kapur / Delhi Development Authority)
Vaish Associates (New Delhi)
CCI initiates investigation against Delhi Development Authority (DDA) * CCI by its order dated January 12, 2017 has initiated an investigation against the Delhi Development Authority (“DDA”) for abuse of dominant position in relation to delayed allotment of flats in the Middle Income Group (...)

The Polish Supreme Court finds that a decision of the Competition Authority and the judgement of the Court of Appeal failed to establish a sufficiently precise relevant market definition to enable the finding of an abuse of dominance in the natural gas sector (PGNiG)
Małgorzaty Kozak (Warsaw)
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Affre i Wspólnicy (Warsaw)
In the judgment of the Supreme Court (“SC”) of 10 January 2017, (III SK 61/15) concerning the alleged abuse of dominant position by PGNiG S.A. – a Polish natural gas company, the case was referred back to the Court of Appeal in Warsaw (“CA”). The SC found that neither the President of the Office of (...)

The Indian Competition Authority finds the largest national commercial real estate developer guilty of abuse of dominance for the second time in a short period but refrains from imposing a second fine (DLF New Gurgaon)
Vaish Associates (New Delhi)
CCI again finds DLF abusing its dominant position* CCI by its order dated January 04, 2017 has found DLF and its group entities abusing its dominant position by imposing unfair and discriminatory conditions /prices on Informants in violation of Section 4 of the Act. The case was filed by Shri (...)

Mergers

The EU Commission refers the review of a merger concerning two private hospital groups back to the French Competition Authority (Médipôle-Partenaires / Elsan)
French Competition Authority (Paris)
The European Commission has referred the review of the acquisition of Médipôle-Partenaires by Elsan back to the Autorité de la concurrence* On 31 January 2017, the European Commission has referred the review of the acquisition of sole control of Médipôle-Partenaires by Elsan, two private hospital (...)

The German Competition Authority clears a wet-lease agreement on 38 passenger aircraft between two airlines (Lufthansa / Air Berlin)
Van Bael & Bellis (Brussels)
On 30 January 2017, the German Competition Authority (“Bundeskartellamt”) granted permission to Lufthansa to wet-lease 38 aircraft from rival airline Air Berlin, which is currently undergoing restructuring. In the aviation industry, a wet-lease refers to the lease of an aircraft including the (...)

The French Competition Authority clears a merger in the food wholesale sector and breaks with its previous practice concerning the delimitation of the market (Metro / Colruyt France)
French Competition Authority (Paris)
The Autorité de la concurrence clears Metro’s acquisition of Colruyt France (Pro-à-Pro)* On 28 November 2016, the European Commission referred the review of the acquisition of Colruyt France SAS (“Colruyt France”) by Metro AG (“Metro) back to the Autorité de la concurrence (see note on referrals in (...)

The German Competition Authority clears a wet-lease agreement under German merger rules (Air Berlin / Lufthansa)
University of Grenoble Alpes
On January 30, 2017, the German Competition Authority (hereinafter the Bundeskartellamt) validated a aircraft wet-lease agreement between Air Berlin and Lufthansa under merger rules. Traditionally, the merger rules are applied to control a real merger , which could affect competition on the (...)

The German Competition Authority clears a wet-lease agreement concerning aircrafts in accordance with German merger rules (Lufthansa / Air Berlin)
German Competition Authority (Bonn)
Lufthansa may lease aircraft from Air Berlin* Today the Bundeskartellamt has cleared the wet-lease agreement on 38 passenger aircraft between Lufthansa and Air Berlin. The agreement was proactively notified by the parties according to German merger control rules. With the wet-lease agreement (...)

The UK Competition and Markets Authority is consulting on proposed changes to the UK merger regime to reduce the burden of investigations into mergers where the parties operate in small markets
Jones Day (London)
UK merger control process The UK operates a two-stage merger control regime. Before starting a formal merger investigation, the CMA will conduct pre-notification discussions with the parties, which typically last one to two months. Upon conclusion of these discussions, the CMA opens a formal (...)

The US FTC raises the thresholds for the Hart Scott Rodino Act
Shearman & Sterling (New York)
The US Federal Trade Commission (“FTC”) has revised and, once again, raised the thresholds for the Hart Scott Rodino Antitrust Improvements Act of 1976, as amended (the “HSR Act”). The HSR Act may require that parties to proposed stock or asset acquisitions exceeding certain thresholds file (...)

The US FTC announces that it will raise the Hart Scott Rodino Act jurisdictional and filing fee thresholds
Morgan Lewis (New York)
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Morgan Lewis (Washington)
On January 19, the Federal Trade Commission (FTC) announced that it will raise the Hart Scott Rodino Act (HSR Act) jurisdictional and filing fee thresholds. Any transaction closing on or after the effective date of the notice (30 days after the pending publication in the Federal Register) will (...)

The German Competition Authority clears a merger on the e-book online platform market (Rakuten / Tolino)
German Competition Authority (Bonn)
Bundeskartellamt clears acquisition of "tolino" e-book platform by Rakuten* The Bundeskartellamt has cleared the acquisition by the Japanese online retailer Rakuten Inc. of the assets for the technical operation of the "tolino" e-book platform. The seller of the assets is Deutsche Telekom AG, (...)

The EU Commission clears a merger, subject to remedies, on the threat detection equipment business market (Morpho Detection / Smiths)
DG COMP (Brussels)
Mergers: Commission clears acquisition of Morpho Detection by Smiths, subject to conditions* The European Commission has cleared under the EU Merger Regulation the proposed acquisition of Morpho Detection, the threat detection equipment business of Safran of France, by Smiths of the UK. The (...)

The US FTC revises thresholds for HSR Act notifications and for interlocking directorates
Weil, Gotshal & Manges (Washington)
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Weil, Gotshal & Manges (Washington)
Agencies report annual HSR threshold increases* On January 19, 2017, the FTC announced revisions to the jurisdictional thresholds for the Hart-Scott- Rodino Antitrust Improvements Act of 1976 (HSR Act), which will become effective on February 27, 2017 and apply to transactions consummated on (...)

The FTC announces that the Hart-Scott-Rodino premerger notification program will be raised about from the 2016 levels
Dechert (New York)
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Dechert (Washington)
HSR Filing Threshold Increases to US$80.8 Million HSR Act or Rule Provision2017 Indexed Value US$50 million size-of-transaction test US$80.8 million US$200 million size-of-transaction test US$323.0 million US$100 million size-of-person test US$161.5 million US$10 million size-of-person (...)

The EU Commission clears acquisition between two leading global manufacturers of threat detection equipment, subject to remedies (Smiths Group / Morpho Detection)
DG COMP (Brussels)
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DG COMP (Brussels)
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DG COMP (Brussels)
Smiths Group/Morpho Detection: maintaining security through innovation* In a nutshell: Smiths’ acquisition of Morpho Detection brought together two leading suppliers of the equipment used to detect explosives and narcotics. This equipment is omnipresent at security checks in airports and is (...)

The Indian Competition Authority fines merging parties for failure to disclose global acquisition of the healthcase antisepsis business (Schulke / ASP Division of Ethicon)
Vaish Associates (New Delhi)
CCI penalizes Schulke and Mayr GmBH (Schulke) for delayed filing in relation to the acquisition of Healthcare Antisepsis Solutions (HAS) business of Johnson & Johnson Private Limited (JJPL)* CCI, by its order dated January 13, 2017 has imposed a penalty of INR 25,00,000 on Schulke on (...)

The Indian Competition Authority clears acquisition of sole ownership over global glass manufacturer by global chemicals and biofuels company (Guardian / Koch Industries)
Vaish Associates (New Delhi)
CCI approves combination of Koch Industries and Guardian Industries under sub- section (1) of section 31 of the Act* CCI by its order dated January 4, 2017, has given the approval to the acquisition of 55.50 percent shares of Guardian Industries Corp. (“Guardian”) by Koch Industries Inc. (KII). (...)

The US FTC publishes its merger remedies report and signals tougher enforcement
Skadden, Arps, Slate, Meagher & Flom (Washington DC)
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Jones Day (Houston)
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Jones Day (Washington DC)
The Federal Trade Commission staff have completed a new study evaluating its process for designing and implementing merger remedies and the success of the remedies it has imposed in the past. Its report—"The FTC’s Merger Remedies 2006-2012: A Report of the Bureaus of Competition and (...)

The US FTC issues its second report on merger remedies
Baker McKenzie (Chicago)
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Baker McKenzie (Washington D.C.)
Expanding on the FTC’s divestiture study in 1999, on 19 January 2017, the FTC issued its second report, The FTC’s Merger Remedies 2006-2012: A Report of the Bureau of Competition and Economics. Recognizing that the efficacy of its remedies is critical to its mission, the key finding is that "the (...)

State Aid

Procedures

The US FTC and DOJ issue revised antitrust guidelines for international enforcement
Weil, Gotshal & Manges (Washington)
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Weil, Gotshal & Manges (Washington)
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Weil, Gotshal & Manges (Washington)
Revised Antitrust Guidelines for International Enforcement and Cooperation issued by FTC and DOJ* On January 13, 2017, the DOJ and FTC jointly issued final updated Antitrust Guidelines for International Enforcement and Cooperation (Updated International Guidelines), which replace the 1995 (...)

The Chinese MOFCOM reports on its 2016 activities
China Competition Bulletin (Beijing)
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University of Melbourne
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Hogan Lovells (Beijing)
On 11 January 2017, the MOFCOM provided a summary of its 2016 antitrust activities. In 2016, the MOFCOM received 378 merger notifications, initiated 360 merger reviews, and completed 395 merger reviews, representing an increase of 7.4%, 6.5%, and 19%, respectively, from 2015. It conditionally (...)

Public sector

The Italian Anti-Corruption Authority adopts guidelines making antitrust infringements ground for exclusion from public procurement procedures
Shearman & Sterling (Rome)
On 19 April 2016, legislative decree n. 50/2016 containing the new Italian Public Procurement Code (PPC) entered into force. The PPC aims to implement, among others, Directive 2014/24/EU which sets out, at Article 57, a number of mandatory and discretionary grounds for excluding an economic (...)

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