July 2008

Anticompetitive practices

The French Competition Council rejects a request for interim measures relating to alleged anti-competitive practices between a joint venture a and one of its parent companies on port facilities (AP Moller-Maersk / Port of Le Havre)
Herbert Smith Freehills (Paris)
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Hewlett Packard (Geneva)
Background This case arose out of the "Port 2000" initiative, a project which was initiated in the 1990s with the aim of tripling the capacity of the port at Le Havre by adding new berths and several terminals. Global shipping company AP Moller-Maersk ("APMM") and Perrigault group, a French (...)

The Czech Competition Authority fines non-alcoholic beverages producer for resale price maintenance (Kofola)
Van Bael & Bellis (Brussels)
According to a press release dated 30 July 2008, the Czech Competition Authority imposed a fine of CZK 13.5 million (approximately € 550,000) on Kofola (the second largest non-alcoholic beverages manufacturer established in the Czech Republic) for resale prince maintenance in breach of Czech (...)

The EU Commission opens a public consultation on the new Block Exemption Regulation and Guidelines on Vertical Restraints
Ashurst (Milan)
EC’s public consultation on the new Block Exemption Regulation and Guidelines on Vertical Restraints* On 28 July 2008, the European Commission launched a public consultation to review the Block Exemption Regulation (“BER”) and the Guidelines on vertical restraints, which are set to expire in May (...)

The Belgian Competition Council finds a non-profit association guilty of price fixing but does not impose any fine (AIAB)
European University Institute (Florence)
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Liaison Agency Flanders-Europe (Vleva) (Brussels)
1. Parties The present case arose from a complaint lodged by Review Applications of Communication (“RAC”), a firm active in communications applications before the Belgian Competition Council (“the Council), against a non-profit association, the Association of Interior Architects of Belgium (...)

The Italian Competition Authority decides not to adopt an interim measure against some batteries smelters investigated for cartel conducts (COBAT)
Bonelli Erede (Rome)
On 24 July 2008, the Italian Competition Authority (the ICA or AGCM) decided not to adopt interim measures against COBAT (the Italian consortium for the collection and recycling of used batteries) and some other battery smelters that had been investigated for breaching Article 2 of Law 287/1990 (...)

The Bulgarian Competition Authority applies Art. 81 EC and the useful effect doctrine to minimum price maintenance and sets aside a statutory provision facilitating it (Chamber of the design engineers)
Kinstellar (Sofia)
The Bulgarian Commission for Protection of Competition (the ¡°CPC¡±) found that a methodology for setting the prices of structural design services adopted by a professional regulation body effectively introduced minimum price maintenance and condemned the methodology as anticompetitive. The (...)

The German Competition Authority requires additional commitments to allow joint selling of football rights (German Football League)
Van Bael & Bellis (Brussels)
According to press releases of 17 and 24 July 2008, the German Federal Cartel Office (FCO) has informed the German Football League (DFL) that the marketing model it has recently proposed concerning the joint selling of individual league members’ TV broadcasting rights to Bundesliga football (...)

The EU Commission prohibits collecting societies from restricting competition into the conditions for the management and licensing of authors’ public performance rights for musical works (CISAC)
DG COMP (Brussels)
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DG COMP (Brussels)
"The CISAC decision - creating competition between collecting societies for music rights"* I. Introduction On 16 July 2008 the European Commission adopted a decision prohibiting 24 European collecting societies from restricting competition as regards the conditions for the management and (...)

The Portuguese Competition Authority accepts commitments concerning non-compete obligations on hotels, restaurants and cafés (Nestlé Portugal / Delta Cafés Sociedade Gestora de Participaçoes Sociais, Nutricafés / Cafés e Restauraçao and Segafreddo Zanetti)
Van Bael & Bellis (Brussels)
On 16 July 2008, the Portuguese Competition Authority issued a press release indicating that it has accepted the commitments offered by four suppliers (Nestlé Portugal SA, Delta Cafés Sociedade Gestora de Participaçoes Sociais SA, Nutricafés – Cafés e Restauraçao SA and Segafreddo Zanetti (Portugal (...)

The UK Competition Authority publishes the results of a market study on personal current accounts in the retail banking sector and claims hidden fees result in cross subsidisation (PCAs UK)
KOF Swiss Economic Institute - ETH Zurich
Introduction On 16 July 2008, the Office of Fair Trading (OFT) published the results of a market study that investigates personal current accounts (PCAs) in the UK retail banking. The OFT is concerned about the overall level and the structure of fees of PCAs. The fee structure results in (...)

The High Court of England and Wales refers questions to the ECJ regarding whether the prohibition on the use of foreign satellite decoder equipment and cards in the UK infringes, inter alia, Art. 81 EC (Football Association Premier League / QC Leisure)
European Commission - Legal Service (Brussels)
In two separate cases involving the same claimant, the High Court of England and Wales has referred questions to the European Court of Justice regarding whether the prohibition on the use of foreign satellite decoder equipment and cards in the UK infringes, inter alia, Article 81 EC. (...)

The Bulgarian Competition Authority applies for the first time Art. 81.1 EC and sanctions 14 insurance companies for fixing minimum levels (Association of the Bulgarian insurance companies)
Kinstellar (Sofia)
On 15 July 2008, the Bulgarian Commission for Protection of Competition (the “CPC”) sanctioned 14 insurance companies for fixing minimum levels of the premium for the compulsory Civil Liability insurance for car drivers (“Civil Liability insurance”) and of the commission paid to insurance brokers (...)

The UK OFT reaches settlement in tobacco price-fixing case (Asda / First Quench / Gallaher / One Stop Stores / Somerfield / TM Retail)
Van Bael & Bellis (Brussels)
On 11 July 2008, the Office of Fair Trading (OFT) announced that it had reached early resolution agreements with six companies relating to certain anti-competitive arrangements relating to the retail pricing of tobacco products in the UK. These settlement agreements follow the issue of a (...)

The German Federal Cartel Office imposes multi-million fines on account of market information exchange (Luxury cosmetics products - "Schlossrunde")
Mutze Korsch Rechtsanwaltsgesellschaft (Düsseldorf)
Background The German Competition Authority (Federal Cartel Office, "FCO") is currently investigating a couple of cases where market information exchange practices between competitors and non-competitors are allegedly infringing competition law. With the case at hand the FCO has found its first (...)

The Lithuanian Competition Council fines three consulting agencies for collusive tendering in the market for consulting on projects supported by the EU structural funds (Eurointegracijos projektai, EIP Kaunas, EIP Vilnius)
Walless (Vilnius)
On 10 July 2008 the Lithuanian Competition Council (LCC) passed a decision on three consulting agencies for collusive tendering in the market for consulting on projects supported by the European Union structural funds. UAB Eurointegracijos projektai, UAB EIP Kaunas, UAB EIP Vilnius (together (...)

The EFTA Court issues landmark ruling concerning exhaustion of trademark rights (L’Oréal / Per Aarskog / Nille / Smart Club)
Van Bael & Bellis (Brussels)
On 8 July 2008, the EFTA Court issued a judgment concerning the interpretation of First Council Directive 89/104/EEC to approximate the laws of the Member States relating to trademarks (the “Trademark Directive”), in which it adopted the principle of mandatory EEA-wide exhaustion of trademark (...)

The Belgian Competition Council condemns the Belgian professional association of driving schools for price fixing (Test-Achats / Auto-écoles de Belgique)
Liège University
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Actéo (Liege)
I. The parties This case arose from a complaint of the Superior Institute of Driving (SID) and the Belgian Consumer Association ‘Test-Achats” (TA) lodged before the Belgian Competition Council (“the Council”) against the Belgian Federation of Professional Driving Schools (BFPDS). BFPDS is a (...)

The Polish NCA issues its first commitment decision in a cartel case (Xella Polska and its distributors)
Greenberg Traurig Grzesiak (Warsaw)
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PKN Orlen (Warsaw)
On 7 July 2008, the President of the Office for Competition and Consumers’ Protection (‘the OCCP’ or “the Office’) confirmed that Xella Polska Sp. z o.o., a part of the Franz Haniel & Cie Gmbh capital group (“Xella Polska") and its 10 distributors had infringed the competition law rules by (...)

The Polish antitrust authority concludes an investigation into a price-fixing agreement in the construction sector with a commitment decision and no fine (Xella Poland)
Dentons (Warsaw)
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Wierzbowski Eversheds (Warsaw)
On February 1, 2007, Xella Polska Sp. z o.o. («Xella») signed a number of contracts with its distributors regulating the conditions of supply of wall-building materials by Xella. Each of the contracts included a clause forbidding the distributor from reselling Xella‘s products at a price lower (...)

The Belgian Competition Authority adopts an effects based analysis to conclude to the absence of predatory pricing or excessive pricing in the gas and electricity sectors (Electrabel)
Sheppard, Mullin, Richter & Hampton (Brussels)
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Lexxion Publisher (Berlin)
Background According to his powers under the Belgian Competition Act (the Law on the Protection of Economic Competition hereinafter "LPCE"), the Belgian minister of the economy, energy and commerce has requested an investigation into the gas and electricity sectors in Belgium to the (...)

The EU Court of First Instance dismisses appeal against Commission’s decision to provide statement of objections to third party (Polimeri Europa)
Van Bael & Bellis (Brussels)
On 2 July 2008, the Court of First Instance (CFI) issued an order dismissing an appeal brought by Polimeri Europa (“PE”) against a decision by the European Commission to provide a non-confidential version of the Statement of Objections in the synthetic rubber cartel case to Manufacture Française (...)

The European Commission adopts new guidelines on the application of Article 81 of the EC Treaty to the maritime sector
DG COMP (Brussels)
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European Commission (Brussels)
"The new Guidelines on the application of Article 81 of the EC Treaty to the maritime sector"* On 1 July 2008, the European Commission adopted guidelines on the application of Article 81 of the EC Treaty to maritime transport services (‘the Guidelines’). This followed a public consultation in (...)

The Irish Competition Authority extends block exemption of non-compete obligations for the distribution of fuel
Van Bael & Bellis (Brussels)
On 1 July 2008, the Irish Competition Authority extended the block exemption (from the Irish law equivalent to Article 81 EC) of non-compete obligations in agreements for the distribution of fuel products in service stations. Thus, non-compete obligations of a duration of less than 10 years (...)

The Austrian and German Competition Authorities issue reports on fuel price developments and investigate alleged concerted practices by multi-national oil companies (OMV / Shell / ExxonMobil / BP / Eni / Conoco)
Becker Günther Polster
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OBB (Vienna)
Introduction On 11 July 2008, the Federal Competition Authority ("Bundeswettbewerbsbehörde" ; hereinafter referred to as FCA) published its first interim report on fuel prices in Austria with special regard to alleged concerted practices of well-established multi-national oil companies (OMV, (...)

Unilateral Practices

The EU Commission welcomes amendments to the French incumbent electricity operator supply contract (EDF)
Van Bael & Bellis (Brussels)
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Practising Law Institute (New York)
On 31 July 2008, the Commission announced that it was welcoming changes made by EDF, a supplier of electricity in France, to its contractual framework with Exeltium, a consortium of large industrial electricity consumers in France. According to the Commission’s press statement, EDF has made (...)

The Polish Supreme Court rules that a civil court may establish an abuse of a dominant position independently, unless the Competition Authority has already found such an abuse (Torun Timber Industry Enterprise)
WilmerHale (Brussels)
On 23 July 2008 the Polish Supreme Court ruled that if it is necessary to declare a contract to be void, a civil court may independently investigate and find an abuse of a dominant position, unless the national competition authority has already established such an infringement. The proceedings (...)

The EU Commission sents a supplementary statement of objections to a leading computer manufacturer (Intel)
Van Bael & Bellis (Brussels)
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Practising Law Institute (New York)
On 17 July 2008, the Commission confirmed that it sent a supplementary Statement of Objections to Intel. This supplementary SO is said to reinforce the initial SO and also identify the Commission’s preliminary conclusion that Intel has engaged in three additional elements of abusive conduct. (...)

The Belgian Commercial Court in Antwerp considers prices that do not comply with regulatory pricing obligations to be excessive under Belgian competition law (Base / Belgacom)
Arendt & Medernach (Luxembourg)
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NautaDutilh (Luxembourg)
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Arendt & Medernach (Luxembourg)
Facts of the case 1. In 2007, a dispute arose between Base, one of the three main mobile telephone operators in Belgium, and Belgacom, the Belgian incumbent on the fixed telephone market. In a decision of 11 August 2006, the Institut belge des services postaux et des télécommunications (IBPT ), (...)

The Swiss Competition Authority closes an investigation on the publication of information on drugs following commitment (Documed)
International Committee of the Red Cross (Geneva)
The Swiss Competition Commission (the “Comco”) closed in July 2008 an investigation on the publication of information on drugs through an amicable agreement with the company Documed SA (“Documed”). Documed, a company of the pharmaceutical group Galenica, collects and edits information on drugs, (...)

The Czech Competition Authority fines the incumbent railway operator for imposing discriminatory terms with respect to its freight services (Èeské Dráhy)
Wolf Theiss (Prague)
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Czech Ministry of Justice (Prague)
By a first-instance decision adopted on 16 July 2008, the Czech Office for the Protection of Competition fined Èeské Dráhy, the incumbent railway operator, CZK 270 million (approx. EUR 11 million) for an abuse of dominant position under the relevant Czech legislation. In its decision, the Office (...)

The Austrian Supreme Court once again finds that an integrated film distributor and cinema operator abused its dominant position by refusing to supply copies of its films to rival cinema operators (Constantin-Film)
Reidlinger Schatzmann Rechtsanwälte (Vienna)
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DORDA (Wien)
This case is the latest instalment in a series of claims for refusal to deal brought by Austrian cinema operators against Constantin-Film, a company active in Austria both as a distributor of cinema films and as an operator of a large number of cinemas. Like the previous decisions against (...)

The Hungarian Competition Authority refuses to condemn for dominant position the postal incumbent’s conduct due to the lack of palpable market effects (Magyar Posta)
Szeged University
The Hungarian Competition Office refused to condemn the defendant’s conduct in a dominant position case due to the lack of palpable market effects. The behaviour would have admittedly amounted to an abuse in case of perceptible market consequences. However, in the absence of such impairment to (...)

The European Court of Justice issues a preliminary ruling on the organisation of motorcycle events in Greece (MOTOE)
Van Bael & Bellis (Brussels)
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Practising Law Institute (New York)
On 1 July 2008, the European Court of Justice issued a preliminary ruling in a case involving a challenge to the activities of ELPA, which has responsibility for organising motorcycle events in Greece and also in entering into sponsorship, advertising and insurance contracts. The Court of (...)

The EU General Court upholds Commission’s decision against a maritime company (Compagnie Maritime Belge)
Van Bael & Bellis (Brussels)
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Practising Law Institute (New York)
On 1 July 2008, the Court of First Instance (“CFI”) issued its judgment on Compagnie Maritime Belge’s appeal of the Commission decision of 30 April 2004 (the “Decision”), which had fined it € 3.4 million for the infringements of Article 82 EC established in the Commission original decision of 23 (...)

Mergers

The Swedish Competition Authority conditionally clears a merger in the market for healthcare materials (OneMed/Simonsen)
Cederquist (Stockholm)
The operation On 8 February 2008, OneMed AB (OneMed) notified its acquisition of Simonsen Material AB (Simonsen) to the Swedish Competition Authority (SCA). Both OneMed, through its subsidiary Förbandsmaterial AB (“FMAB”), and Simonsen are active in the wholesale market for healthcare products. (...)

The US Court of Appeals for the District of Columbia Circuitoverturns a district court’s denial of FTC’s request for a preliminary injunction against an acquisition in the organic food sector (Whole Foods / Wild Oats)
WilmerHale (Washington)
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WilmerHale (Washington)
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Kirkland & Ellis (Washington)
The Federal Trade Commission (FTC) won a major victory last week when a splintered D.C. Circuit overturned the district court’s denial of its request for a preliminary injunction against the acquisition of Wild Oats by Whole Foods. The decision provides the FTC a much-needed win in a prominent (...)

The US Court of Appeals for the District of Columbia Circuit reverses the denial of a preliminary injunction sought by an undertaking against a merger in the organic food sector (Whole Foods / Wild Oats)
Skadden, Arps, Slate, Meagher & Flom (Washington DC)
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Skadden, Arps, Slate, Meagher & Flom (New York)
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Skadden, Arps, Slate, Meagher & Flom (New York)
On July 29, 2008, the U.S. Court of Appeals for the D.C. Circuit reversed the denial of a preliminary injunction sought by the FTC against a merger of Whole Foods Market, Inc. and Wild Oats Markets, Inc., in a ruling that significantly lowers the bar for the FTC to obtain preliminary (...)

The US DoJ requires divestiture of operations in 4 cities prior to clearing a private-equity investor’s acquisition of a media company, thereby preventing anticompetitive effects in the market for radio stations (Bain Capital / Clear Channel)
Akin Gump Strauss Hauer & Feld (Dallas)
Bain Capital LLC (“Bain”), Thomas H. Lee Partners, L.P. (“THL”), and Clear Channel Communications Inc. (“Clear Channel”) entered into a consent decree with the DOJ on February 13, 2008 to close the DOJ’s investigation into Bain and THL’s acquisition of a 70% interest in Clear Channel. The consent (...)

The German Government intends to modify the merger notification thresholds (MEG III)
Helmut Schmidt University of the Armed Forces (Hamburg)
I. The status quo At present, mergers need to be notified to the Bundeskartellamt (Federal Cartel Office, FCO) if : 1. The combined aggregate worldwide turnover of the undertakings in the preceding business year exceeded €500million; and 2. the domestic turnover of at least one of the (...)

The Italian Competition Authority imposes significant divestitures in phase II while clearing a merger in the bank sector (Antonventa / Monte dei Paschi di Siena)
Ughi e Nunziante Studio Legale
On 23 July 2008 the Italian Antitrust Authority (the IAA) published a conditional clearance decision after a second-phase investigation concerning the acquisition by Banca Monte dei Paschi di Siena (MPS) of sole control over Banca Antonveneta (Antonveneta) and its subsidiaries. Before (...)

The European Commission clears, subject to divestiture, an acquisition in the production and distribution of alcoholic beverages (Pernod Ricard/V&S Vin & Sprit)
JG Associates (Brussels)
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DG COMP (Brussels)
"Mergers: main developments between 1 May and 31 August 2008"* In July clearance was granted to Pernod Ricard‘s proposed acquisition of the Swedish state-owned company V&S Vin & Sprit (V&S). Pernod Ricard is a publicly quoted French company active in the production and distribution (...)

The Romanian Competition Council clears the meaning of "group" for the purposes of merger turnover calculation (CRH Denmark- Ferrobeton Dunaujvarosi Beton)
Musat & Asociatii (Bucharest)
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Nestor Nestor Diculescu Kingston Petersen (Bucharest)
1. The law Under the Romanian Competition Law n° 21/1996 , as amended and supplemented (the “Romanian Competition Law”), an economic concentration must be notified to the Competition Council in case certain thresholds are met, namely : (i) the aggregate worldwide turnover of the undertakings (...)

The French Ministry of Economy clears a merger of companies providing information on horse racing to professionals and the general public, subject to the provision of essential racing data to third parties under transparent and non-discriminatory conditions (PMU / Serendipity / Geny Infos)
French Transports Regulatory Authority
The operation In a letter of 16 July 2008, the French Minister of Economy, Industry, and Employment (DGCCRF) authorized PMU and Serendipity, an investment company, to jointly acquire full control (each having 50% of the equity and voting rights) over Geny Infos. PMU is an association for (...)

The French Minister of Economy approves a concentration in the frozen baked dessert products industry after ruling out vertical and horizontal effects on competition (Vandemoortele)
Darrois Villey Maillot Brochier (Paris)
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Moskvina Law
Vandemoortele contemplated acquiring sole control of Panavi. The SPA contained non-competition and non-solicitation clauses, which the Minister considered necessary for acquiring the totality of Panavi’s assets and know-how. The parties’ activities overlap in (i) frozen baked dessert products (...)

The European Commission conditionally clears a merger in the market for advanced wound care products (Nordic Capital/ConvaTec)
JG Associates (Brussels)
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DG COMP (Brussels)
"Mergers: main developments between 1 May and 31 August 2008"* In July the Commission cleared the proposed acquisition of ConvaTec of the US by Nordic Capital of Jersey, the Channel Islands. The Commission’s decision was conditional upon the commitment by Nordic Capital to divest its entire (...)

The Russian NCA cleared a merger in the tyres market subject to remedies, including a requirement to establish direct contractual relationships with customers (OAO Amtel-Vredestein / Sibur Holding)
Clifford Chance (Moscow)
The operation The petrochemical company OAO "SIBUR Holding" (“Acquirer”) applied for clearance of the acquisition of indirect control over the entire voting capital of OAO “Amtel Vredestein” (“Target”) as a result of a reverse acquisition of a controlling stake in Amtel Vredestein N.V. The market (...)

The Estonian Competition Authority uses new priority principle for parallel mergers (Valga-Vastse-Kuuste / Valga-Wõro)
Triniti
On 15 July 2008, the Estonian Competition Authority (“ECA”) cleared the acquisition of control over AS Vastse-Kuuste Lihatööstus (“Vastse-Kuuste”) by AS Valga Lihatööstus (“Valga”). Both companies are active in the meat processing market in Estonia. In the clearance decision, the ECA refers to a (...)

The EU Commission conditionally clears an acquisition in the bakery ingredients industry (Lesaffre / GBI UK)
JG Associates (Brussels)
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DG COMP (Brussels)
"Mergers: main developments between 1 May and 31 August 2008"* In July the Commission gave a conditional go-ahead to the proposed acquisition of GBI UK — GB Ingredients Ltd and BFP Wholesale Ltd engaged in the yeast business and owned by Gilde B.V, by the French yeast manufacturer Compagnie des (...)

The Spanish National Competition Commission clears with behavioural remedies the acquisition of a general hospital (Adeslas / Policlínica San José)
PwC (Madrid)
The operation The operation was Adeslas’ acquisition of all the assets of Policlínica San José. Policlínica San José is a private general hospital located in the city of Vitoria-Gasteiz (in the province of Álava). Prior to the merger, this hospital was owned by the insurance company Mutualia. (...)

The EU Court of Justice annuls the Court of First Instance’s judgment relating to a joint venture in the music publishing sector (Sony / BMG)
DG COMP (Brussels)
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DG FISMA (Brussels)
"The Joint Venture SonyBMG: final ruling by the European Court of Justice"* By judgment of 10 July 2008 in Case C-413/06 P, Bertelsmann and Sony Corporation of America v Impala (the “Judgment”), the Court of Justice (the “Court”) annulled the ruling by the Court of First Instance (the “CFI”). The (...)

The Norwegian Competition Authority approved a merger in the market for laboratory services subject to the divestment of a business unit (Eurofins/ Lantmännen Analycen)
Bull Årstad (Stavanger)
The operation On 9 November 2007, Eurofins Danmark A/S (Eurofins) notified the Norwegian Competition Authority (NCA) of its proposed acquisition of the entire share capital of Lantmännen Analycen AB (Lantmännen), including its subsidiaries Analycen AS and Analycen Ecotox AS. Both Eurofins and (...)

The Danish Competition Council approves the conversion of a broadcasting services company into a full-function joint venture, subject to remedies to ensure non-discrimination in the treatment of customers (Danmarks Radio / TV2 / Broadcast Service Danmark JV)
Kromann Reumert (Copenhagen)
The operation Danmarks Radio was the national public service broadcasting television station in Denmark. TV2 was a state-owned television broadcaster. TV2 owned and operated a number of television channels. Danmarks Radio and TV2 jointly owned Broadcast Service Danmark. The parent companies (...)

The European Commission refers the examination of a proposed acquisition to the Czech Competition Authority (REWE/Plus Discount)
JG Associates (Brussels)
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DG COMP (Brussels)
"Mergers: main developments between 1 May and 31 August 2008"* In July, following a request of the Czech Competition Authority under the EC Merger Regulation, the Commission decided to refer the acquisition of Plus Discount (Czech Republic) by REWE (Germany) to the Czech Competition Authority (...)

The Swedish Competition Authority clears a merger in the medical equipment sector (OneMed, Simonsen Material)
Van Bael & Bellis (Brussels)
On 3 July 2008, the Swedish Competition Authority conditionally cleared OneMed’s acquisition of Simonsen Material Holding, following an in-depth investigation. In order to safeguard competition on the post-merger market for the wholesale supply of medical equipment to communes in Sweden, where (...)

The Polish Competition Authority adopts a more economic approach to antitrust law as applied to pharmaceuticals (Richter Gedeon / Polpharma)
Dentons (Warsaw)
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Dentons (Warsaw)
Over the last few years, seldom did we have a chance to observe the Chairperson of the Polish Office for Competition and Consumer Protection (“UOKiK”) commenting broadly on the definition, structure or mechanisms of pharmaceutical markets. How surprising it was to find that in the decision of 3 (...)

The German Federal Cartel Office prohibits the merger between the two biggest producers of curdled milk cheese (Müller / Poelmeyer)
University of East Anglia (Norwich)
Background Theo Müller GmbH & Co. KG (Müller), the market leader in diary products in Germany, intended - through its subsidiary Loose GmbH & Co. KG (Loose) - to purchase 100 per cent of the shares of Poelmeyer Holding GmbH (Poelmeyer). The main product of both Loose and Poelmeyer is (...)

The European Commission clears an acquisition in the navigable digital map databases sector (Nokia/NAVTEQ)
JG Associates (Brussels)
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DG COMP (Brussels)
"Mergers: main developments between 1 May and 31 August 2008"* In July the Commission approved the proposed acquisition of NAVTEQ of the US by Nokia of Finland. NAVTEQ is a provider of navigable digital map databases and Nokia mainly produces mobile telephones. Nokia is the largest (...)

State Aid

The Dutch Court of Appeal rules that an objective justification under the State aid rules does exist for tax measures that are of a purely technical nature (Ryanair / Maastricht Aachen Airport)
Adyen (Amsterdam)
Factual Background With effect from 1 July 2008, the Dutch Government introduced a new tax law levying a EUR 45 flight tax for all passengers on board flights departing from the Netherlands for destinations outside the European Union, and EUR 11.50 for destinations within the European Union. (...)

The French Administrative Court of Bordeaux rejects the State aid law pleas invoked by an unsuccessful bidder in a public tender won by a regional public body, ruling that Art. 87 EC is not directly effective (Merceron)
Sheppard, Mullin, Richter & Hampton (Brussels)
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European Court of Justice (Luxembourg)
Factual Background This case is an appeal lodged against a judgment at first instance in which the claimant saw its request dismissed. It claimed the annulment of a local authority (city) decision confirming a concession contract for the dredging of the port of a commune. The contract was (...)

The Spanish Administrative Legal Organ of Alava allows the deferment and break up of a State aid recovery payment (Local Administration of Alava)
Hogan Lovells (Madrid)
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Allianz (Brussels)
Brief description of the facts and legal issues: Appeal before the Administrative Legal Organ of Alava (the "ALOA") by a company against a decision of the Local Administration of Alava ("LAA") refusing the deferment and break up of the recovery of a State aid and requiring the immediate (...)

The Court of First Instance of Brescia rules that the company beneficiary of an State aid has to carry out a previous due diligence process in order to determine the compatibility with the criteria of a block exemption regulation (Brandt Italia)
EUJUS Law Firm (Rome)
Factual background Brandt Italia S.p.A. objected to two different tax bills and summoned INPS-SCCI and the company responsible for the tax collection to the Court of first instance of Brescia. The related proceedings were joined and consequently the Court took a single decision. Brandt Italia, (...)

The Spanish Supreme Court confirms that State aid should be considered as company debt payable to the Central Government and autorised the recovery (Mediterráneo Técnica Textil)
Hogan Lovells (Madrid)
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Allianz (Brussels)
Factual Background: Appeal by the Central Government against a judgement given by the Regional Audience of Seville (the "Judgement") refusing its right to recover a State aid which had previously been declared illegal and incompatible with the Common Market by the European Commission. The (...)

The European Commission rules on the limits to the application of Article 296 and indemnification provision in privatisation contracts (Hellenic Shipyards)
DG COMP (Brussels)
"The Hellenic Shipyards decision: Limits to the application of Article 296 and indemnification provision in privatisation contracts"* On 2 July 2008, the Commission closed its investigation concerning 16 state measures implemented in favour Hellenic Shipyards S.A. (‘HSY‘) by ordering Greece to (...)

The European Commission requests Greece to recover more than €230 million of illegal aid from largest shipyard company (Hellenic Shipyards)
DG COMP (Brussels)
"State aid: main developments between 1 January and 30 April 2010"* The Commission has decided to refer Greece to the European Court of Justice for failing to comply with a Commission decision of 8 July 2008 which found that State aid had been unlawfully granted to Hellenic Shipyards (HSY) and (...)

The EU General Court annuls a Commission decision in a State aid case, holding that the Commission failed to examine whether the State measures exceeded the costs incurred by the postal incumbent in performing services of general economic interest (Deutsche Post)
Van Bael & Bellis (Brussels)
On 1 July 2008, the Court of First Instance (hereinafter ‘the CFI’) annulled the Commission decision which had found that certain measures of the German authorities in favour of Deutsche Post amounted to State aid incompatible with the common market. The CFI held, in particular, that the (...)

The EU Court of Justice annuls General Court’s judgment on State aid in the postal sector (Chronopost / La Poste)
Van Bael & Bellis (Brussels)
On 1 July 2008, the European Court of Justice (hereinafter ‘the ECJ’) annulled a judgment of the Court of First Instance (hereinafter ‘the CFI’) which annulled a 1997 Commission decision in so far as the Commission had found that the logistical and commercial assistance provided by the French Post (...)

The French Court of Appeal for Bordeaux rejects the plea of the appellant based on the violation of State aid finding that the contract of public service could include clauses allowing the compensation for the provision of the public service to be actualised or revised (Syndicat mixte de transports en commun de l’agglomération de Bayonne)
Sheppard, Mullin, Richter & Hampton (Brussels)
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European Court of Justice (Luxembourg)
Factual Background The syndicate seeks the annulment of the judgment of the administrative court of Pau (first instance) in which the applicant had obtained the annulment of a decision of the city of Bayonne granting a concession to an undertaking for the operation of public transport. The (...)

Procedures

A US Court of Appeal provides greater transparency in amnesty process according to the freedom of information act (Stolt-Nielsen transportation group)
White & Case (Washington)
Over the years, the Antitrust Division has used a variety of superlatives to describe its Corporate Amnesty Program. According to the Division, the Amnesty Program is “the single greatest investigative tool available to anti-cartel enforcers” and the “most successful leniency program” in the (...)

The European Commission consults on the functioning of the regulation 1/2003
Court of First Instance of Namur
On 24 July 2008, the Commission launched a public consultation on the functioning of Regulation 1/2003 [1] on the implementation of the rules on competition laid down in Articles 81 and 82 EC. More specifically, the consultation deals with whether one of the objectives of Regulation 1/2003 has (...)

The EU Commission publishes its 2008 annual report on competition policy
Court of First Instance of Namur
On 23 July 2009, the Commission published its 2008 Annual Report on Competition Policy. This yearly Report provides an overview of the Commission’s work on competition enforcement and policy in the areas of antitrust, merger control and State aid. This year’s Report has been drafted in the (...)

The French Commercial Supreme Court rules that the Minister’s action is an independent right of action (Galec)
Vogel & Vogel (Paris)
Before the NRE Law (Nouvelles régulations économiques) the courts were divided over the question of whether the Minister for the Economy had jurisdiction to ask courts to order the annulment of contracts containing provisions to implement restrictive practices or to award damages to victims of (...)

The European Court of First Instance dismisses an appeal on the Dutch bitumen cartel due to lack of direct and indirect concern (Wegenbouwmaatschappij J. Heijmans)
Van Bael & Bellis (Brussels)
On 4 July 2008, the Court of First Instance (CFI) issued an order dismissing an appeal by Wegenbouwmaatschappij J. Heijmans BV (W J Heijmans) against a European Commission decision of 13 September 2006 on the basis that it was not directly and individually concerned by the decision. On 13 (...)

The Dutch Trade and Industry Appeals Tribunal confirms that a fair and public hearing within reasonable time can be interpreted as a period of up to two years or longer in an antitrust procedure (Aesculaap)
Simmons & Simmons (Brussels)
,
Freshfields Bruckhaus Deringer (Amsterdam)
Introduction The Aesculaap case concerns an infringement of Article 6 of the Dutch Competition Act ("Mw") on the grounds that AUV - the procurement collective and wholesaler of veterinary pharmaceuticals -, and Aesculaap - the only other wholesaler of veterinary pharmaceuticals - had adopted a (...)

The EU Commission publishes its 2007 annual report on competition policy
Court of First Instance of Namur
On 1 July 2008, the Commission published its 2007 Annual Report on Competition Policy. The report provides an overview of major developments in competition policy over the last year, outlining key changes and major enforcement actions. The Commission notes that its leniency policy has proved an (...)

The Chinese State Council clarifies the structure and responsibilities of enforcement agencies under China Anti-Monopoly Law
Jones Day (Beijing)
,
Winston & Strawn (New York)
As the countdown to the August 1, 2008, effective date of the new China Anti-Monopoly Law (« AML ») nears its final stages, the structure and allocation of enforcement responsibilities under the AML is becoming slightly more clear. I. Background The AML establishes a two-tier enforcement (...)

Regulatory

The French Competition Authority issues an opinion relative to the situation of MVNO operators on the French mobile telephony market
French Competition Authority (Paris)
Press Release published on the official website of the French Competition Authority. The Conseil de la concurrence analyses the obstacles to the development of MVNOs and makes proposals to create a genuine competition momentum.* Following a referral in May 2008 by the Minister of Economy, (...)

A U.S. federal judge clears sale of counterfeit luxury goods completed through an auction website, ruling that luxury companies are primarily responsible for policing their trademarks online (Tiffany / eBay)
EDHEC (Lille)
In a lawsuit brought by the famous jewellery maker Tiffany & Co. , the US District Court of New York (Southern District, Manhattan) ruled on 14 July 2008 that eBay is not required to make greater effort for policing its site for counterfeit items, the primary burden for protecting a brand (...)

The Spanish Competition Authority monitors the competition conditions of the tenders in the market for regular bus transport service
Spanish Competition Authority (Madrid)
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Compass Lexecon (Madrid)
,
Compass Lexecon (Brussels)
On September 2nd, 2008, the National Competition Commission (Comisión Nacional de la Competencia, hereinafter "CNC"), published a report analysing the provision of intercity transport by bus in Spain. This study was carried out in response to the need for market analysis detected when assessing (...)

The French Competition Authority issues an opinion on the intervention of local authorities in the sector of cinemas (UniCiné)
French Competition Authority (Paris)
Press Release published on the official website of the French Competition Authority. Public and private cinemas: The Conseil de la concurrence’s proposals to guarantee a competition on equal terms.* Following a referral by the industry union UniCiné, which represents the private cinema owners (...)

The Spanish Competition Authority issues recommendations for guaranteeing effective competition in the acquisition of football broadcasting rights (Sogecable / AVS)
Compass Lexecon (Madrid)
On the decision C 102/06 - Sogecable / AVS related to the acquisition of AVS by Sogecable, the former Spanish Competition Tribunal stated the need to investigate the market for the acquisition and exploitation of football broadcasting rights in Spain, with the objective to determine if the (...)

The Paris Court of Appeals rules that the registration of a domain name may amount to a violation of a trademark coexistence agreement (Eurostar / SNCB / SNCF / Eurostar Diamond Traders)
Google (Paris)
When a trademark coexistence agreement is silent on the question of the electronic use of the sign at stake, can one of the parties register a domain name which includes this sign ? This question was raised for the first time before the Paris Court of Appeals, in a dispute over the name , (...)

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