July 2017

Anticompetitive practices

The Chinese NDRC fines two pharmaceutical companies for excessive pricing and refusal to deal (Zhejiang Second Pharma / Tianjin Handewei Pharmaceuticals)
University of Melbourne
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Hogan Lovells (Beijing)
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University of Melbourne
On 31 July 2017, the NDRC publicly announced its decision to sanction Zhejiang Second Pharma (an affiliate of a central-level SOE under the purview of the State-owned Assets Supervision and Administration Commission (SASAC)) and Tianjin Handewei Pharmaceuticals for abusing their dominance. In (...)

The Spanish High Court rules that the constitutional principle of the individual nature of penalties precludes a parent company from being held to be the perpetrator of anti-competitive practices on the market in the motor fuels market solely because of its shareholding in the capital of its subsidiary (Repsol)
Callol, Coca & Asociados (Madrid)
The High Court has upheld the appeal filed by Repsol S.A. (Repsol or Parent Company) against the decision of the NMCC declaring the Parent Company guilty of conduct carried out by its subsidiary Repsol Comercial de Productos Petrolíferos, S.A. (Subsidiary) (Decision of 2 July 2015, file S/484/13 (...)

The French Competition Authority fines several companies which have implemented exclusive import agreements (Materne / Sodibel)
French Competition Authority (Paris)
Exclusive distribution of dessert products in La Réunion and Mayotte* The Autorité de la concurrence fines Materne and its wholesaler-importer for continuing to implement an exclusive import agreement after the “Lurel Act” came into force. The “Lurel Act” bans any exclusive import agreement The (...)

The EU Advocate General Wahl holds that suppliers of luxury goods may prohibit their authorized retailers from selling their goods via third-party internet platforms (Coty Germany)
McDermott Will & Emery (Brussels)
Advocate General Wahl Delivers Opinion on Legality of Bans on Online Sales via Third-Party Platforms in Selective Distribution Systems* According to Advocate General Nils Wahl’s opinion, delivered on July 26, in the Court of Justice of the European Union’s (CJEU) case Coty Germany GmbH v (...)

The US Court of Appeals for the Ninth Circuit affirms the dismissal of an antitrust counterclaim in a labor dispute (ICTSI Oregon / International Longshore and Warehouse Union / Pacific Maritime Association)
McDermott Will & Emery (Washington)
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McDermott Will & Emery (Brussels)
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McDermott Will & Emery (Dusseldorf)
On July 24, 2017, the US Court of Appeals for the Ninth Circuit affirmed the dismissal of an antitrust counterclaim brought by ICTSI Oregon, Inc. (ICTSI), the operator of a marine shipping facility, against the International Longshore and Warehouse Union (ILWU) and the Pacific Maritime (...)

The German Competition Authority issues its report on its inquiry into the cement and ready-mix concrete sector
German Competition Authority (Bonn)
Bundeskartellamt publishes report on its inquiry into the cement and ready-mix concrete sector* Today the Bundeskartellamt has published the final report on its inquiry into the cement and ready-mix concrete sector. Andreas Mundt, President of the Bundeskartellamt: "The cement and ready-mix (...)

The UK Competition Appeal Tribunal refuses a £14 billion class action against a financial service company (Merricks / MasterCard)
Covington & Burling (Brussels)
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Covington & Burling (Brussels)
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Covington & Burling (London)
On Friday, July 21, 2017, the UK’s Competition Appeal Tribunal (the “CAT”) handed down its second class certification decision under the class actions regime introduced by the Consumer Rights Act 2015 (the “Act”). It dismissed the application for two reasons. First, the proposed representative (...)

The Moldovan Competition Authority applies leniency policy in a bid-rigging case on public procurement of equipment maintenance services (Set-Service / Nufăr-Cia)
University of Macau - Faculty of Law (Macau)
On 21 June 2017 the Competition Council (CC) found two undertakings liable for bid rigging in a public procurement of the equipment maintenance services. The case represents a rare instance of a successful leniency application securing the immunity from fine to the undertaking concerned. On 17 (...)

The US Court of Appeals for the Second Circuit dismisses the indictments of two individuals accused of playing a role in the LIBOR case and clarifies the Fifth Amendment law in international cartels (Allen)
McDermott Will & Emery (Washington)
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McDermott Will & Emery (Brussels)
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McDermott Will & Emery (Dusseldorf)
SECOND CIRCUIT CLARIFIES FIFTH AMENDMENT LAW, WITH IMPLICATIONS FOR US PROSECUTION OF INTERNATIONAL CARTELS* On July 19, 2017, the Second Circuit vacated the convictions and dismissed the indictments of two individuals accused of playing a role in the manipulation of the London Interbank (...)

The German Competition Authority allows a company to participate in the national consortium for the construction of military corvettes (ARGE K130)
European Commission (Brussels)
Bundeskartellamt has no serious objections to consortium for the construction of corvettes* Bonn, 19 July 2017: The Bundeskartellamt will not initiate a proceeding to examine whether the planned participation of German Naval Yards Kiel GmbH ("GNYK") in the consortium ARGE K130 violates the (...)

The EU Commission sends a statement of objection to a pharmaceutical company regarding a possible pay-for-delay agreement (Teva / Cephalon)
DG COMP (Brussels)
Antitrust: Commission sends Statement of Objections to Teva on ’pay for delay’ pharma agreement* The European Commission has informed pharmaceutical company Teva of its preliminary view that an agreement concluded with Cephalon was in breach of EU antitrust rules. Under the agreement, Teva (...)

The Moldovan Competition Authority closes an investigation into alleged price fixing on the market for home appliances because of economic justifications (Rolling International)
University of Macau - Faculty of Law (Macau)
On 14 July 2017 the Competition Council of the Republic of Moldova (CC) closed the investigation into the alleged price fixing on the market for household electric appliances due to the presence of economic justifications. In the early 2015 the media discussed an unusual price spike on the (...)

The German Competition Authority fines three manufacturers of heat shields and their representatives for cartel (Elring Klinger Abschirmtechnik)
German Competition Authority (Bonn)
Bundeskartellamt imposes fines on automotive part manufacturers* The Bundeskartellamt has imposed fines amounting to 9.6 million euros on three manufacturers of heat shields and their representatives. The companies involved are Elring Klinger Abschirmtechnik (Schweiz) AG, Sevelen (...)

The Spanish Competition Authority closes the medical gases investigation due to insufficient evidence to establish anticompetitive practices (Abelló Linde / Air Liquide Medicinal / Conste / Praxair...)
Callol, Coca & Asociados (Madrid)
The NMCC initiated an investigation on possible anti-competitive practices in the manufacturing and distribution of medical gases, consisting of market sharing, price fixing and the exchange of confidential information. The NMCC carried out dawn raids at Abelló Linde, S.A., Air Liquide (...)

The German Competition Authority issues a guidance note on the prohibition of vertical price fixing in the food retail sector
German Competition Authority (Bonn)
Bundeskartellamt publishes guidance note on the prohibition of vertical price fixing in the food retail sector* Today the Bundeskartellamt has published a guidance note on the prohibition of vertical price fixing in the brick-and-mortar food retail sector. The aim of the guidance note is to (...)

The German Federal Cartel Office publishes a guidance paper on the prohibition of resale price maintenance with focus on the food and retail sector
McDermott Will & Emery (Dusseldorf)
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McDermott Will & Emery (Paris)
GERMAN ANTITRUST AUTHORITY ISSUES GUIDELINES ON RESALE PRICE MAINTENANCE* On 12 July 2017, the German Federal Cartel Office (FCO) published a guidance paper (Guidance Paper) on the prohibition of resale price maintenance (RPM). The Guidance Paper has a particular focus on the food retail (...)

The French Competition Authority launches a public consultation as part of its current sector-specific inquiry on online advertising
French Competition Authority (Paris)
Online advertising* As part of its current sector-specific inquiry on online advertising, the Autorité de la concurrence has launched a public consultation in order to collect stakeholder comments on several points. Stakeholders are asked to reply to the questionnaire sent out by the Autorité (...)

The Paris Court of Appeal confirms the validity of the method applied by the French Competition Authority to fine a professional organisation of modelling agencies (Modelling sector’s main professional union)
TotalEnergies (Paris)
The method of setting fines These French guidelines specify the different steps followed by the French Competition Authority (FCA): • determination of the basic amount of the fine, depending on the seriousness of the infringements and the importance of the harm to the economy (the basic amount (...)

The EU Court of Justice dismisses an appeal in a gas insulated switchgear cartel case (Toshiba)
Van Bael & Bellis (Brussels)
On 6 July 2017, the European Court of Justice of the European Union (“ECJ”) dismissed an appeal lodged by Toshiba against a judgment of the General Court (“GC”), which upheld the European Commission’s decision to re-impose nes on Toshiba for its involvement in the gas insulated switchgear cartel. (...)

The Hellenic Competition Authority carries out ex-officio investigations at several companies for being involved in an anticompetitive horizontal agreement in the banking sector (STATE/ STEAT)
Kyriakides Georgopoulos (Athens)
HORIZONTAL AGREEMENTS HCC /17 CONTRACTORS’ COMPAGNIES HCC (647/2017) I. Horizontal agreements of market partitioning and bid-rigging for public tenders violating Articles 1 of Law 3959/2011 by seventeen (17) contractor companies and two (2) contractors’ associations (SATE and STEAT as successor (...)

The Hellenic Competition Authority fines a company for abusing its dominant position and extends parent liability for competition law violations in the detergents, cleaners and cosmetics sector (Colgate / Palmolive)
Kyriakides Georgopoulos (Athens)
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Kyriakides Georgopoulos (Athens)
Vertical Agreements Restriction of parallel trade clauses in Colgate’s vertical agreements with retailers – Parental liability (HCC 610/2015) In 2017, the HCC published its decision against members of the COLGATE-PALMOLIVE group of companies pursuant to an ex officio investigation in the (...)

Unilateral Practices

The Italian Competition Authority rules that 3 companies have abused their dominant position in the markets for rail infrastructure management and regional rail passenger transportation services (FS / RFI / Trenitalia)
Cleary Gottlieb Steen & Hamilton (Milano)
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Cleary Gottlieb Steen & Hamilton (Milano)
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Cleary Gottlieb Steen & Hamilton (Rome)
On July 31, 2019, the ICA issued a decision stating that Ferrovie dello Stato Italiane S.p.A. (“FS”), Rete Ferroviaria Italiana S.p.A. (“RFI”) and Trenitalia S.p.A. (“Trenitalia”) had abused their dominant position in the markets for rail infrastructure management and regional rail passenger (...)

The French Competition Authority fines a funeral company for abuse of dominance (Comtet)
French Competition Authority (Paris)
Funeral services in the Ain département* The Autorité de la concurrence funeral company Comtet that, at the time of the alleged events, was running the crematorium in the town of Viriat in the département of the Ain under a public service franchise agreement with the municipal council, for two (...)

The French Competition Authority accepts remedies proposed by a sugar producer suspected to have abused its dominant position (Tereos)
French Competition Authority (Paris)
Sugar production / Picardie* Tereos takes commitments under the French competition authority that it will open up its procurement contracts. Sugar beet growers will benefit from greater freedom to choose the sugar groups that they want to supply. The complaint by Saint-Louis Sucre France’s (...)

The Italian Regional Administrative Court for Latium upholds the infringement decision made by the Competition Authority against a pharmaceutical laboratory for excessive pricing (Aspen)
Giannino SI (Monserrato)
By the judgement handed down in Aspen v AGCM , the Regional Administrative Court of Latium (the Court) has recently determined the appeal lodged by a South African manufacturer of generic drugs, Aspen, against the 2016 decision made by Italian Competition Authority (ICA), rejected all the (...)

The Indian Competition Authority dismisses allegations of abuse of dominance against a company in the market for radio taxi services and holds that a high market share does not in and of itself constitute dominance (Fast Track Call Cab / ANI Technologies / OLA Cabs)
Vaish Associates Advocates (New Delhi)
CCI closes case of alleged abuse of dominance by ANI Technologies Pvt. Ltd. (OLA)* The CCI vide order dated July 19, 2017 closed the case of alleged abuse of dominant position by OLA. The complaint against OLA was filed by Fast Track Call Cab Pvt. Ltd. and Meru Travel Solutions Pvt. Ltd. (...)

The Indian Competition Authority dismisses allegations of abuse of dominance against a pharmaceutical manufacturer due to lack of evidence of dominance (Sanofi)
Vaish Associates Advocates (New Delhi)
CCI closes allegation of abuse of dominance against Sanofi* CCI vide its order dated July 19, 2017 has closed an allegation of abuse of dominant position against Sanofi India Limited (Sanofi). The Informant in the case sought confidentiality of his identity and hence was not named. The (...)

The Indian Competition Authority opens the third investigation in a short amount of time into the abuse of dominance by one of the largest national energy companies (Mohan Meakin / Gail India)
Vaish Associates Advocates (New Delhi)
GAIL comes under CCI scanner once again* The Competition Commission of India (‘CCI’) on a complaint filed by Mohan Meakin Ltd. has directed yet another investigation into alleged unfair market practices leading to abuse of dominant position by GAIL (India) Ltd. (‘GAIL’), vide its latest order (...)

The Spanish Competition Authority closes abuse of dominance proceedings through a commitments decision against a pharmaceutical company (IMS Health)
Callol, Coca & Asociados (Madrid)
On 13 July 2017, the NMCC closed the Article 102 TFEU and Article 2 of the Spanish Competition Act (Competition Act) proceedings related to the supply of pharmaceutical marketing data to IMS Health (IMS) by means of a commitments decision. The NMCC initiated the investigation, as a result of (...)

The Paris Court of Appeal rejects the request against the Competition Authority’s decision regarding practices implemented on the electricity and gas market (ENGIE)
TotalEnergies (Paris)
The settlement procedure in France The major change is that parties willing to conclude a settlement procedure will be informed of the minimum and maximum fine that may be imposed (and not of a percentage of reduction relating an amount of sanction which is not yet known). The disclosure (...)

Mergers

The EU Commission clears a merger, subject to remedies, in the vending services market (Pelican Rouge / Selecta)
DG COMP (Brussels)
MERGERS: COMMISSION APPROVES ACQUISITION OF PELICAN ROUGE BY SELECTA, SUBJECT TO CONDITION* The European Commission has cleared under the EU Merger Regulation the proposed acquisition of vending services provider Pelican Rouge of the Netherlands by Selecta of Switzerland. The clearance is (...)

The French Competition Authority opens an in-depth investigation concerning a merger in the online property advertising (SeLoger.com / Logic-Immo.com)
French Competition Authority (Paris)
ONLINE PROPERTY ADVERTISING* The Autorité de la concurrence has begun an in-depth examination as part of the review of the take-over of Concept Multimédia (Logic-Immo.com) by the Axel Springer group (SeLoger.com) The Axel Springer group, which is active mainly on the online property adverting (...)

The Hellenic Competition Authority clears a joint venture in the greenhouse production of agricultural products (Thermokipia Thrakis)
Kyriakides Georgopoulos (Athens)
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Kyriakides Georgopoulos (Athens)
Clearance of Joint Venture in the greenhouse production of agricultural products: Thermokipia Thrakis (HCC 649/2017) Thrace Plastics Co S.A. (Thrace Plastics) and Elastron A.E.V.E. - Steel Products (Elastron) were two companies, each having a subsidiary active in the greenhouse production, (...)

The Irish Competition Authority clears an acquisition subject to a structural remedy in the media monitoring business (Kantar Media / Newsaccess)
Trinity College Dublin
Introduction On 11 July 2017 the Competition and Consumer Protection Commission (CCPC), Ireland’s competition agency, cleared the acquisition by Mediawatch Limited, trading as Kantar Media (Kantar Media), an indirectly wholly-owned subsidiary of WPP plc (WPP), of Newsaccess Limited (Newsaccess), (...)

The EU Commission sends statements of objection to three undertakings regarding possible breach of EU merger procedural rules (Merck / Sigma-Aldric ; GE / LM Wind ; Canon / Toshiba Medical Systems)
DG COMP (Brussels)
Mergers: Commission alleges Merck and Sigma-Aldrich, General Electric, and Canon breached EU merger procedural rules* The Commission has sent three separate Statements of Objections to Merck and Sigma-Aldrich, General Electric and Canon alleging they breached EU merger rules: General Electric, (...)

The EU Commission sends three separate statements of objections to companies alleging procedural breaches of the EU Merger Regulation (Merck / Sigma-Aldric ; GE / LM Wind ; Canon / Toshiba Medical Systems)
Van Bael & Bellis (Brussels)
On 6 July 2017, the European Commission sent three separate statements of objections (“SO”) to companies alleging procedural breaches of the EU Merger Regulation. Provision of misleading information The first SO concerns the Merck/Sigma-Aldrich transaction, which was conditionally cleared by (...)

The EU Commission clears a merger subject to remedies on the refractory products market (Magnesita Refratários / RHI)
DG COMP (Brussels)
Mergers: Commission approves acquisition of Magnesita Refratários by RHI, subject to conditions* The European Commission has approved under the EU Merger Regulation the acquisition of Magnesita Refratários by RHI. The decision is conditional on the divestment of the two companies’ overlapping (...)

State Aid

The EU Commission qualifies an airport as SGEI and rules that the related compensation is a compatible State aid (Inverness Airport)
Giannino SI (Monserrato)
* Article published on StateAidHub.eu Blog (click here), republished in e-Competitions with the courtesy of the author(s). The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

The EU Court of Justice rules that a Member State could not request reimbursement of an aid that had been granted to an undertaking in compliance with the General Block Exemption Regulation (Nerea)
Jones Day (Brussels)
In Short The Situation: On July 6, 2017, the European Court of Justice ruled that a Member State could not request reimbursement of aid that had been granted to an undertaking in compliance with the General Block Exemption Regulation solely because that undertaking later became the subject of (...)

The EU Court of Justice finds that the eligibility of a State aid applicant and the legality of the aid are determined at the point when the aid is granted (Nerea)
Maastricht University
Article published on StateAidHub: http://stateaidhub.eu, republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

The EU General Court clarifies the obligations of the Commission following a State aid annulment decision (SNCM)
DG ENERGY (Luxembourg)
The judgments of the General Court of the EU of 6 July 2017, delivered in the cases France v Commission and Société nationale maritime Corse Méditerranée (SNCM) v Commission européenne, confirm the settled case-law of the Union judicature regarding the criterion of the private investor in a market (...)

Procedures

The EU Court of Justice clarifies the Hearing Officer’s scope of review regarding confidentiality requests while rejecting any special treatment of leniency applicants at the publication stage
Epex Spot (Paris)
In its confirmatory ruling issued on 26 July 2017, the EU Court of Justice (hereafter “the Court”) upheld the EU General Court ruling of 15 July 2015 which had dismissed AGC Glass group’s action against the Commission’s decision rejecting their request for confidential treatment of certain (...)

The US Democrats publish "A Better Deal" policy statement with proposals to change antitrust/competition enforcement
Weil, Gotshal & Manges (Washington)
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Weil, Gotshal & Manges (Washington)
Democrats’ "Better Deal" policy statement proposes significant changes for antitrust/competition enforcement* On July 24, 2017, Democratic Party leaders unveiled “A Better Deal,” their plan to improve economic conditions for the American working class. A key element of the Better Deal plan to (...)

The Moldovan Supreme Court of Justice clarifies the rules on the appointment of the members of the Competition Authority (Feodor Gladii)
University of Macau - Faculty of Law (Macau)
On 19 July 2017, the Supreme Court of Justice (SCJ) of the Republic of Moldova has clarified the procedural rules concerning the appointment of the members of the Competition Council (CC) in a case concerning the alleged discrimination at the workplace. The Moldovan Competition Law provides (...)

The Turkish Competition Authority fines an undertaking operating in the wholesale market for fresh fruits and vegetables for hindering an on-site inspection (Çekok Gıda)
ELIG Gürkaynak Attorneys-at-Law (Istanbul)
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ELIG Gürkaynak Attorneys-at-Law (Istanbul)
This case note analyses the Turkish Competition Board’s (“Board”) Çekok Gıda decision dated 03.07.2017 and numbered 17-20/318-140. The Board had initiated an ex-officio preliminary investigation and assessed allegations that eight undertakings operating in the Turkish wholesale market for fresh (...)

Regulatory

The Indian Competition Authority issues Guidance note on “non-compete” clauses
Vaish Associates Advocates (New Delhi)
CCI Issues Guidance note on “Non-compete” clause: An Overview* Introduction “Non-compete” obligations are frequently incorporated in M & A transactions to facilitate the effective implementation of a proposed combination. Non-compete obligations enable the Acquirer to secure complete benefit (...)

The Russian Competition Authority’s Head calls for stronger cooperation in cross-border investigations and exchange of classified information at UNCTAD’s 16th session of the intergovernmental group of experts on competition law and policy
United Nations Conference on Trade and Development (UNCTAD)
Russia’s perspective on International Competition law and policies by of Mr. Igor Artemiev, Head of Federal Antimonopoly Service of the Russian Federation* The 16th session of the Intergovernmental Group of Experts on Competition Law and Policy took place in Geneve from 5-7 July 2017. Q: What (...)

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