July 2005

Anticompetitive practices

The German Federal Court of justice finds, after referring the case to the ECJ for a preliminary ruling, that formerly block exempted motor vehicle distribution agreements contain hardcore restrictions under the new EC Reg. 1400/2002 (BMW)
Hengeler Mueller (Dusseldorf)
I. Background The contractual relationship between the German car manufacturer BMW and its authorized car dealers is based on a formal dealer agreement. In respect of the termination of the contract, a 12 months’ instead of a 24 months’ notice applies if BMW sees the necessity to reorganise the (...)

The Belgian Competition Authority concludes that the joint selling of media rights is in line with the decision practice of the EU Commission and is not infringing Art. 81(1) EC (Jupiler League / Belgacom Skynet)
Leuven University
Leuven University
On 29 July 2005 the Belgian Competition Council approved the award of TV broadcasting rights by the Liga Beroepsvoetbal (“LBV”) to Belgacom Skynet, since there was no infringement of Art. 81 EC. The Council has found that the broadcasting rights of matches of the Belgian first (and second) (...)

The US Court of Appeals for the District of Columbia Circuit upholds the finding of the FTC that the prohibition of discounts and advertising was inherently suspect as they would tend to raise prices and reduce output (PolyGram)
Sheppard Mullin (Los Angeles)
DC Circuit Hits High Note In “Three Tenors” Case – Petition For Review Of FTC Decision In Polygram Holding, Inc. Denied* On July 22, 2005, the Court of Appeals for the District of Columbia Circuit denied a petition for review filed by PolyGram Holding, Inc. In so doing, the DC Circuit, in an (...)

The Spanish Supreme Court rejects the appeal against the Competition Authority’s interim measures fining € 3 M price fixing in the framework of “non-genuine” agency agreements (Repsol)
London School of Economics (London)
On 11 July 2001, the Tribunal de Defensa de la Competencia (hereinafter, “the NCA”) adopted a decision (“resolución”) in which it found that Repsol, S.A. (now Repsol YPF, S.A., hereinafter referred to as “Repsol”) acted in breach of Article 1(1) of the Spanish Competition Act. More precisely, the NCA (...)

The Portuguese Competition Authority finds that the deontological code of the professional association of veterinaries infringes Art. 81 EC by imposing minimum fees (Sindicato Nacional dos Médicos Veterinários)
London School of Economics (London)
Following a complaint, the Autoridade da Concorrência (hereinafter, “the NCA”) started an investigation concerning the fixation of minimum prices by the Professional Association of Veterinaries (“the Association”). According to Article 43 of the Deontologial Code (“the Code”) issued by this (...)

The French Competition Authority fines three major national companies for implementing a cartel in the public passenger urban transport market, with potential appreciable effect on trade between member States (Keolis, Connex and Transdev)
Paris Bar
DFDL (Singapore)
Last July 2005, the French Competition Authority fined Keolis, Connex and Transdev a total of 11 € million for operating a national cartel in the French market for public passenger urban transport on the basis of article L. 420-1 of the French Commercial Code and article 81 EC. In its decision, (...)

A Spanish Court considers a distribution contract to be a “genuine” agency agreement and therefore not caught by Art. 81.1 EC (Rutamur / Repsol)
London School of Economics (London)
Compañía arrendataria del monopolio del petróleo, S.A. (hereinafter, “Campsa”) and Rutamur, S.A.(“Rutamur”) concluded in December 1988 an agency agreement concerning the distribution of oil products. The latter operated from premises hired to it by Campsa. The commission was set by reference to the (...)

The German Federal Court declares settlement concerning royalties for shipments to countries outside the territorial scope of a patent to be void (Abgasreinigungsvorrichtung)
Helmut Schmidt University of the Armed Forces (Hamburg)
I. Facts of the case and case history The claimant/licensee produces devices for cleaning exhaust fumes. The defendant/licensor owns a European patent protecting a specified process for cleaning exhaust fumes, with territorial effect (seeEuropean Patent Convention, Art. 3) in Germany, France, (...)

Unilateral Practices

The French Competition Authority validates practices in the taximeter sector based on both EC and French competition laws (ATA)
Advolis Orfis (Paris)
On 21 November 1996, the Competition Council had been asked by several French and foreign companies (the latter being represented by their respective exclusive distributor in France) to review practices applied by Automatismes et Techniques Avancées (ATA) on the taximeter market. On 10 March (...)

The California Court of Appeals of Los Angeles rules that in the absence of an abuse of monopoly power in a relevant market, the case on sales of new models of cellular telephones involved nothing more than a permissible unilateral refusal to deal (People’s Choice Wireless / Verizon Wireless)
Sheppard Mullin (Los Angeles)
California Court of Appeals affirms dismissal of “unfairness” claim on ground* People’s Choice Wireless, Inc. v. Verizon Wireless, B175179. In a case building upon the definition of “unfair” as defined in the California Unfair Practices Act, plaintiffs, independent dealers of cellular phones (...)

The French Competition Authority applies a "rule of reason analysis" to an abuse of dominant position in the press advertising sector (La Provence Group)
Sheppard, Mullin, Richter & Hampton (Brussels)
Lni avocats (Paris)
The La Provence group owns the two main regional daily newspapers distributed in Marseille (Southern France) namely Le Provençal and Le Méridional. The two newspapers transferred the exclusive responsibility for managing local advertising to Eurosud Publicité ; however, the commercial policy was (...)

The Czech Competition Authority applies the EC Guidelines on vertical restraints to the dominant operator of lotteries and finds it guilty of abuse of dominant position (Sazka)
Wolf Theiss (Prague)
On 20 July 2005 the Chairman of the Office for the Protection of Competition confirmed a first-instance decision whereby Sazka (the dominant Czech operator of betting games and lotteries) had been found guilty of abusing its dominant position. At the same time, the Chairman reduced the fine (...)

The UK High Court issues an interim injunction preventing termination of supply pending full trial in an alleged abuse of a dominant position case (Attheraces / British Horseracing Board)
Sanoma (Helsinki)
Background This interlocutory judgment sets the scene for a review by the English courts of the European case-law relating to refusals to supply and essential facilities as well as a possible future reference to the European Court of Justice. It concerns the British Horseracing Board (BHB), (...)

The Danish Competition Appeal Tribunal upholds findings by the Danish Competition Authority that the postal incumbent has abused its dominant position in the market for distribution of unaddressed mail on the basis of Art. 82 EC (Post Danmark)
Ofcom (London)
By decisions dated 29 September (the Discrimination Decision) and 24 November 2004 (the Predation Decision) respectively, the Danish Competition Authority held that the incumbent provider of postal services in Denmark, Post Danmark, had engaged in two instances of abuse of its dominant position (...)


The EU Commission clears an acquisition creating the world’s largest shipping company (PONL / Maersk)
JG Associates (Brussels)
DG COMP (Brussels)
"Mergers — Main developments between 1 May and 31 August 2005"* The European Commission cleared under the EU Merger Regulation the proposed acquisition of the shipping company Royal P&O Nedlloyd (PONL) by AP Moller-Maersk A/S (Maersk). The Commission’s clearance was conditional upon the (...)

The US FTC imposes conduct remedies, such as refraining from bringing suit against violations of its patents that were misrepresented to a standard-setting organization, before approving a merger in the gasoline industry (Chevron / Unocal)
Covington & Burling (Washington)
On August 2, following a public comment period, the Federal Trade Commission approved the issuance of two consent orders that separately resolved (1) its 2003 monopolization complaint against Union Oil Company of California ( Unocal ) alleging anticompetitive abuses of the regulatory (...)

The French Minister of Economic Affairs cleared in phase II a merger in the market of airport services conditional to structural and behavioural remedies and the nomination of a trustee (Vinci / France Handling)
Brown Brothers Harriman (BBH) (Luxembourg)
The operation By letter dated 25 July 2005, the French Minister of Economic Affairs (“the Minister”) authorised a merger where France Handling, an undertaking jointly held by Aéroports de Paris (AdP), Danzas and Aérofret, was acquired by Groupe Vinci via its subsidiary Vinci Services (...)

The Bulgarian Competition Authority clears a merger between the two major daily national newspapers subject to divestiture obligations, limited tying and price control (Waz Media Group Bulgaria Holding EOOD/Media Holding AD)
Boyanov & Co. (Sofia)
The operation The operation relates to the increase of the shareholding of WAZ Media Group Bulgaria Holding EOOD (a subsidiary of Westdeutsche Allgemeine Zeitung - WAZ Gruppe) in Media Holding AD from 30% to 60% of the issued share capital of the latter. WAZ and Media Holding are publishers of (...)

The French Supreme Administrative Court refers to the French Competition Council, for the first time ever, a clearance decision of the French Minister of Economy regarding a share acquisition in the enterprise resource planning software solutions sector (CEGID / CCMX Holding)
On July 23, 2004 the acquisition of 100% of the shares of CCMX Holding (“CCMX”) by Cegid SA (“Cegid”) thereby conferring Cegid sole control of CCMX, was notified to the French Minister of Economy (the “Minister”). Both parties were active in the design, development and marketing of Enterprise (...)

The EU Commission conditionally clears a merger in the consumer goods production (Procter & Gamble / Gillette)
DG COMP (Brussels)
European Commission (Brussels)
European Commission (Brussels)
"Procter & Gamble/Gillette: the role of economic analysis in Phase I cases"* In July 2005, the European Commission has approved, subject to conditions, the acquisition of Gillette by Procter & Gamble. The merger creates one of the world’s biggest consumer goods producers with a combined (...)

The EU Commission approves subject to divestiture a proposed takeover in the hydropower industry (Siemens / VA Tech)
JG Associates (Brussels)
DG COMP (Brussels)
"Mergers — Main developments between 1 May and 31 August 2005"* The European Commission approved under the EU Merger Regulation the proposed takeover of the VA Tech group of Austria by Siemens of Germany, subject to the condition that Siemens divests itself of VA Tech’s hydro power business and (...)

The EU Commission clears a merger in the engineering sector addressing the issue of bidding markets and minority stakes (Siemens / VA Tech)
DG Economic and Financial Affairs (ECFIN) (Brussels)
DG COMP (Brussels)
DG COMP (Brussels)
"Siemens/ VA Tech: A Case of Bidding Markets and Minority Stakes"* On 26 April 2006, the merger case M.3653 — Siemens/VA Tech was closed following the successful sale, after an auction process organised by Siemens, of VA Tech‘s hydro power business to Andritz, an Austrian engineering group. (...)

The Bulgarian Commission for the Protection of Competition, in a multistep transaction involving the privatization of two thermal electric power plants, imposes conditions preventing the sale of the plants to a single buyer (OAO RAO EES Rossi / Toplofikacia Rousse)
Boyanov & Co. (Sofia)
The operation The operation relates to a multistep transaction, where within the framework of a privatization procedure OAO RAO EES Rossi was proposed to acquired control of TPP Varna EAD and Toplofikacia Rousse EAD - two major thermal electric power plants in North-Eastern Bulgaria. The (...)

The EU Commission conditionally clears the creation of a joint venture between Dutch newspaper publishers (PCM / Wegener)
JG Associates (Brussels)
DG COMP (Brussels)
"Mergers — Main developments between 1 May and 31 August 2005"* The creation of a joint venture between Dutch newspaper publishers PCM Holding (‘PCM’) and Koninklijke Wegener (‘Wegener’) through the combination of some of their newspapers was cleared by the European Commission under the EU Merger (...)

The EU Commission conditionally clears a merger in the airlines industry (Lufthansa / Swiss Airlines)
JG Associates (Brussels)
DG COMP (Brussels)
"Mergers — Main developments between 1 May and 31 August 2005"* The European Commission has cleared under the EC Merger Regulation the proposed acquisition by German air transport company Deutsche Lufthansa of the Swiss International Air Lines. The Commission’s clearance is conditional upon the (...)

State Aid

The EU Commission finds compliance with private creditor test but orders recovery of some previously granted restructuring aid by the Polish government (Huta Czestochowa)
DG COMP (Brussels)
"The restructuring of Huta Czestochowa — the Commission’s decision finding compliance with private creditor test but ordering recovery of some previously granted restructuring aid"* On 5 July 2005, the Commission took a hybrid decision deciding on the one hand that the restructuring of Huta (...)


The German Parliament revises its Act against restraints of competition including damages claims (Gesetz gegen Wettbewerbsbeschränkungen)
Eberhard Karls University of Tübingen
The German Act against Restraints of Competition (“ARC”) has contained a special antitrust damages claim since its entering into force in 1958, which is now § 33 ARC. The German jurisprudence is therefore one of the most experienced as far as the private enforcement of antitrust law is concerned. (...)


The French Competition Authority issues an opinion on the transition to a new numbering format for directory assistance services (ARCEP)
French Competition Authority (Paris)
Press Release published on the official website of the French Competition Authority. New number system for directory assistance: The Conseil de la concurrence has given ARCEP an opinion in which it stresses the risk of established operators gaining an advantage in the market.* Having been (...)

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