June 2004

Anticompetitive practices

The Belgian Competition Authority launches an enquiry on the alleged discriminatory practices of a bank on the basis of both EC and national provisions (Banksys)
BDGS Associés (Paris)
The Belgian Minister of Economy has asked the “Corps des Rapporteurs” of the National Competition Council (“NCC”) to conduct an investigation concerning Banksys, a Belgian corporation, that it suspects of abuse of dominant position on the Belgian integrated electronic payment systems and services (...)

The Portuguese competition authority adopts an exemption decision under national competition law for an exclusive distribution agreement (Central de Cervejas)
London School of Economics
Autoridade da Concorrência, Decision SCC - Central de Cervejas, S.A., 28 june 2004 SCC - Central de Cervejas, S.A. (hereinafter, “SCC”) is a Portuguese undertaking whose main activity is the manufacturing and marketing of beer, soft drinks and mineral waters. In order to obtain a negative (...)

The European Commission condemns the recommended minimum fee scale operated by the Belgian architects’ association
Delegation of the European Union to Thailand
"Liberal professions and recommended prices: the Belgian architects case"* In the context of the Commission’s endeavours to eliminate restrictive and unjustified rules in the liberal professions sector, it took a decision on 24 June 2004, condemning the recommended minimum fee scale operated by (...)

The German Higher Regional Court of Düsseldorf holds that hardcore restrictions are not per se appreciable if the relevant market share is below 1% (Tschechisches Bier)
Gleiss Lutz (Munich)
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Milbank, Tweed, Hadley & McCloy (Munich)
On 23 June 2004, the German Higher Regional Court of Düsseldorf issued a decision on the compatibility with EC law of a contract concerning an exclusive right to import Czech beer into Germany . Facts The plaintiff used to be the sole importer and authorised dealer in Germany for Budweiser (...)

The Spanish Audiencia Provincial de Madrid refuses to submit a preliminary reference to the ECJ considering that this would only be relevant if the agreements at stake were deemed to be agency ones (Ahigal / Melón / Repsol)
London School of Economics
Compañía arrendataria del monopolio del petróleo, S.A. (hereinafter, ‘Campsa’) concluded an agency agreement concerning the distribution of oil products with two companies, Ahigal, S.A. (“Ahigal”) and Melón, S.A. (“Melón”). In 2003, Ahigal and Melón decided to bring an action against Repsol Comercial de (...)

The Cypriot Competition Authority imposes a fine on three banking institutions for coordinating their interest rates (Bank of Cyprus / Cyprus Popular Bank / Hellenic Bank)
University of Tilburg - Center for Law and Economics (TILEC)
On 22 June 2004 the Cyprus Commission for the Protection of Competition (CPC) put an end to its ex officio investigation of the commercial banks in Cyprus for the existence of a possible cartel, unanimously finding three banking institutions liable for restrictive enterprise agreements. A total (...)

The US Supreme Court rules that the Sherman Act does not apply to claims arising solely out of the foreign effect of a global cartel (Hoffman-LaRoche / Empagran)
Jones Day (Washington DC)
As economic globalization marches on, one question that emerges repeatedly is how far the U.S. legal system can and should reach beyond its own borders. Answering that question has become particularly urgent in antitrust enforcement, as the effects of cartels and business practices increasingly (...)

The US Supreme Court restricts the applicability of US antitrust laws with regard to injuries suffered abroad holding that foreign nations can preserve competition without American interference (Hoffman-La Roche / Empagran)
IRS Office of Chief Counsel
F. Hoffman-La Roche Ltd. v. Empagran S.A.: The Supreme Court Trusts That Foreign Nations Can Preserve Competition Without American Interference* In F. Hoffman-La Roche Ltd. v. Empagran S.A., the United States Supreme Court held that United States courts do not have jurisdiction over claims of (...)

The US Supreme Court blocks foreign plaintiffs from bringing price-fixing cartel claims (Hoffman-LaRoche / Empagran)
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 (Washington DC)
On June 14 2004, in a unanimous judgment, the Supreme Court blocked foreign plaintiffs from bringing an antitrust claim in U.S. courts seeking damages based on higher foreign prices that are allegedly independent of the domestic effects of higher domestic prices. However, the case was remanded (...)

The US Supreme Court prevents foreign plaintiffs from bringing price-fixing cartel claims (Hoffman-LaRoche / Empagran)
St. John’s University School of Law
The FTAIA and Empagran: What Next?* In F. Hoffman LaRoche Ltd. v. Empagran S.A., 542 US 155 (2004), the Supreme Court limited access to American courts by foreign plaintiffs suing under the Sherman Act based on foreign transactions. Jurisdiction over foreign antitrust claims is governed by (...)

A Spanish jurisdiction holds that the application of EU law would only be pertinent in case where the agreement is deemed a “non-genuine” agency one (La Safor / Compañía Logística de Hidrocarburos)
London School of Economics
Compañía arrendataria del monopolio del petróleo, S.A. (hereinafter, “Campsa”) and Automoción y Servicion La Safor, S.L. (“La Safor”) concluded in March 1990 a number of contracts related to the distribution of oil products. The contractual relationship included an agency agreement as well as a (...)

A Spanish Court declares null and void on the basis of Art. 81.1 EC a “non-genuine” agency agreement involving price-fixing and concluded for a period exceeding 10 years (Clau / Cepsa)
London School of Economics
Compañía arrendataria del monopolio del petróleo, S.A. (hereinafter, “Campsa”) and Clau, S.A. “Clau”) concluded in December 1988 a series of agreements concerning the distribution of oil products. Clau decided to grant a “droit de surface” (“derecho de superficie”) of a piece of land it owns so that (...)

The Hungarian Competition Authority condemns two undertakings for cooperation agreement in a public tendering procedure (Construm, Royal Bau)
Université Catholique de Louvain
On 6 June 2004, the Hungarian Competition Authority began proceedings aiming to establish whether two undertakings active in the construction business, Construm and Royal Bau, had infringed Article 11(1) and Article 11 (2) (d) of the Hungarian Competition Act. The Hungarian Competition (...)

A Spanish Court annuls a judgment rendered in first instance on the qualification of a so-called agency agreement in the oil products distribution sector (Repsol)
London School of Economics
Compañía arrendataria del monopolio del petróleo, S.A. (hereinafter, “Campsa”) and Caminas, S.A. (“Caminas”) concluded in July 1981, November 1981 and July 1989 several agreements related to the exploitation of a gas station (“the agreements”) by the latter. Caminas brought an action for annulment (...)

Unilateral Practices

The EU Commission finds a undertaking refusing to supply certain clearing and settlement services to one of its customer by also applying discriminatory prices is an anticompetitive conduct (Clearstream)
DG COMP (Brussels)
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European Commission - DG EAC
The Clearstream decision: the application of Article 82 to securities clearing and settlement* On 2 June 2004 the Commission adopted a decision finding that Clearstream Banking AG and its parent company Clearstream International SA violated Article 82 by refusing to supply certain clearing and (...)

The OECD holds a roundtable on intellectual property rights
OECD - Competition Division
Key documents: Executive Summary with key findings, Detailled Summary of the discussion, Background note Executive summary, by the Secretariat Considering the discussion at the roundtable, the delegate submissions and the background paper, a number of key points emerge: (1) Competition (...)

Mergers

The UK Competition Commission cleared subject to behavioural remedies an acquisition of a rail franchise by the leading supplier of bus travel (FirstGroup / ScotRail)
Serle Court (London)
The operation FirstGroup was the leading supplier of bus travel in the UK with four bus subsidiaries in Scotland. As at April 2004, it was also the operator of five passenger train operating companies. The Scottish rail franchise operated by ScotRail accounted for 95 per cent of railway (...)

The European Commission unconditionally approves the acquisition of a French glass container manufacturer by its US-based competitor (BSN Glasspack/Owens-Illinois)
JG Associates (Brussels)
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DG COMP (Brussels)
"Merger control: Main developments between 1 September and 31 December 2004"* In October the Commission unconditionally approved the acquisition of the French glass container manufacturer BSN Glasspack S.A. by its US-based competitor Owens-Illinois Inc. The glass containers produced by the (...)

The German Bundeskartellamt cleared two acquisitions in the market for the supply of consumables for dentists and dental laboratories subject to remedies, including the divestiture of the mail order business of one of the targets (Henry Schein / Demedis & Euro Dental)
Baker McKenzie (Dusseldorf)
The operation On 12 January 2004 Henry Schein Inc, USA (“Henry Schein”) notified the Bundeskartellamt of its proposed acquisition of the entire share capital of (i) Demedis GmbH (“Demedis”) and (ii) Euro Dental Holding GmbH (“Euro Dental”). Henry Schein is active worldwide as a producer and (...)

The European Commission refers the examination to the German competition authority of a proposed acquisition in the cable networks industry (Kabel Deutschland/Ish)
JG Associates (Brussels)
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DG COMP (Brussels)
"Merger control: Main developments between 1 May and 31 August 2004"* In June the Commission decided to refer the examination of the intended acquisition of ish GmbH & Co. KG and ish KS NRW GmbH & Co. KG (both together: ‘ish‘), by Kabel Deutschland GmbH (KDG), the operator of the North (...)

State Aid

The EU Commission approves aid for minimising chlorine transport
DG COMP (Brussels)
"Commission approves aid for minimising chlorine transport"* The Commission has not laid down general rules on compatibility of State aid that has the objective to increase safety of citizens and their environment. This does not mean that such aid is always incompatible with the common market. (...)

The EU Commission decides that public support to water companies to create new infrastructure for the distribution of so-called grey water does constitute State aid within the meaning of Article 87(1) of the EC Treaty
DG COMP (Brussels)
"State aid in the water sector: second circuit water — Belgium"* On 2 June 2004, the Commission decided that public support to water companies to create new infrastructure for the distribution of so-called grey water does constitute State aid within the meaning of Article 87(1) of the EC (...)

Procedures

The Versailles Court of Appeal makes good the damages resulting from delayed communication of key market information (Verimedia/Mediametrie)
University of Corsica Pascal Paoli (Corte)
Verimedia launched in 1993 a new activity of media expertise. Verimedia entered into commercial agreement with three specialised undertakings - Mediametrie, Secodip and Audipub - in order to obtain information necessary for its activity. However, these undertakings voluntary delayed the (...)

The US Congress adopts significant antitrust amendments within the Protection of the National Cooperative Research and Protective Act
Jones Day (Washington DC)
For much of the last decade, virtually all antitrust policy development arising out of Washington has come from the enforcement agencies. The other traditional Washington actors responsible for key shifts in antitrust policy and enforcement-Congress and the Supreme Court-have been largely (...)

The US Supreme Court validates a statute authorizing Federal Courts to order discovery for use in foreign proceedings (AMD, Intel)
Jones Day (Washington DC)
In Intel Corporation v. Advanced Micro Devices, Inc., the Supreme Court interpreted a statute that Congress enacted to assist « foreign tribunals » in obtaining evidence in the United States. Advanced Micro Devices (« AMD ») had filed an antitrust complaint against its chip-making competitor, (...)

The Italian Consiglio di Stato recognises the existence of a de facto leniency program in the national competition law system
Freshfields Bruckhaus Deringer (Rome)
Decision of 18 June 2004 n° 6760/04 of the Consiglio di Stato In a decision published in December 2004, the Italian Consiglio di Stato (the competent court for appeals over first instance administrative court decisions) ruled over the de facto possibility to benefit in Italy of a leniency (...)

The CAT decides that an appeal was available to a third party complainant against an OFT decision to close an investigation following receipt of ’voluntary informal assurances’, and clarifies the procedural rights of complainants (Pernod-Ricard / Campbell Distillers)
British Competition Authority - CMA (London)
1. Introduction In this decision, the Competition Appeal Tribunal (CAT) made an important ruling on whether an appeal was available to a third party complainant against an OFT decision to close an investigation following receipt of ’voluntary informal assurances’ from the author of the alleged (...)

Regulatory

The OECD holds a roundtable on regulating market activities by the public sector
OECD - Competition Division
Key documents: Executive Summary with key findings, Detailled Summary of the discussion, Background note Executive summary, by the Secretariat Considering the discussion at the roundtable, the delegate contributions and the background paper, a number of key points emerge: (1) There are many (...)

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