June 2019

Anticompetitive practices

The Mexican Competition Authority notifies economic agents of probable responsibility for collusion in the pharmaceutical market following an investigation in the health sector
Mexican Competition Authority (Mexico City)
COFECE notifies economic agents of a statement of probable responsibility for collusion in the market for pharmaceuticals* • The Investigative Authority concluded their probe and issued a statement indicating probable collusion. • The notification of a statement of probable responsibility (...)

The Düsseldorf Court of Appeal quashes the Federal Cartel Office decision and finds a most favoured nation clause on a hotel booking platform to be compatible with antitrust law (Booking.com)
Heinz & Zagrosek (Köln)
Booking.com’s "narrow" MFN clauses now also permissible in Germany, Court of Appeals rules* On June 4, 2019, the Düsseldorf Court of Appeal quashed the decision of the Federal Cartel Office (“FCO”) prohibiting Booking.com to operate so-called narrow most favored nation (MFN) clauses (or best price (...)

The French Competition Authority fines companies in the chemical pathology products market for failing to apply the legislative changes brought about by the Lurel Act on the implementation of export agreements (bioMérieux / Guyane Service Médical)
French Competition Authority (Paris)
The Autorité has fined the companies bioMérieux and Guyane Service Médical for continuing to implement an exclusive import agreement, after the Lurel Act came into force.* Following information submitted by the Directorate General for Competition Policy, the Autorité issues a new decision (...)

The EU General Court dismisses appeal in the car battery recycling cartel case (Recylex / Fonderie et Manufacture de Métaux / Harz-Metall)
Van Bael & Bellis (Brussels)
On 23 May 2019, the General Court delivered a judgment in which it dismissed the appeal lodged by Recylex against the European Commission’s (“Commission”) decision in the car battery recycling cartel case (Case T-222/17, Recylex and Others v. Commission). In February 2017, the Commission imposed (...)

The French Competition Authority fines a company for obstructing the conduct of inspections in the sectors of engineering and technology consulting, IT services and software publishing (Akka technologies)
French Competition Authority (Paris)
Engineering, IT services and software oublishing* The Akka technologies Group is fined a total of 900 000 euros for obstructing the conduct of inspections made by the Autorité On 8 November 2018, the Autorité de la concurrence have raided the premises of companies and organisations in the (...)

The EU Commission fines five banks for participating in foreign exchange spot trading cartel (Barclays / RBS / Citigroup / JPMorgan / MUFG)
DG COMP (Brussels)
Antitrust: Commission fines Barclays, RBS, Citigroup, JPMorgan and MUFG €1.07 billion for participating in foreign exchange spot trading cartel* In two settlement decisions, the European Commission has fined five banks for taking part in two cartels in the Spot Foreign Exchange market for 11 (...)

The EU Commission imposes fines totalling over € 1 billion on banks for their involvement in two separate cartels on the spot foreign exchange markets (Barclays / RBS / Citigroup / JPMorgan / MUFG Bank)
Van Bael & Bellis (Brussels)
On 16 May 2019, the European Commission adopted two decisions under its cartel settlement procedure, in which it imposed fines totalling € 1.07 billion on five banks for their involvement in two separate cartels on the spot foreign exchange markets for eleven currencies. The banks involved in (...)

The Cypriot Competition Authority fines several companies for bid-rigging in the supply and transportation of ready-mix concrete market (Mattheos Ioannou Ready Mix Concrete / C. Kythreotis Skyrodema / Skyramix...)
Commission for the Protection of Competition of the Republic of Cyprus (Nycosia)
The Commission for the Protection of Competition with its decision imposed on the following undertakings: 1. Mattheos Ioannou Ready Mix Concrete Ltd, 2. C.Kythreotis Skyrodema Ltd, 3. Skyramix Ltd, 4. Athinodorou & Poullas Super Beton Ltd, 5.Top Mix Concrete Ltd, 6. I & S Kritonis (...)

The EU Commission opens investigation into an insurance association in Ireland to assess whether the conditions of access to its Insurance Link data pooling system may restrict competition (Insurance Ireland)
DG COMP (Brussels)
Antitrust: Commission opens investigation into Insurance Ireland data pooling system* The European Commission has opened a formal antitrust investigation into Insurance Ireland to assess whether the conditions of access to its Insurance Link data pooling system may restrict competition, in (...)

The Portuguese Competition Authority confirms dawn raids in the healthcare sector
Portuguese Competition Authority (Lisbon)
AdC confirms dawn raids in the healthcare sector* The Autoridade da Concorrência (AdC) - Portuguese Competition Authority confirms it has carried out dawn raids in eight locations of nine entities in the healthcare sector in Lisbon, Porto and Algarve, following suspicions of anticompetitive (...)

The French Competition Authority dismisses the complaint filed by several garage owners against an automobile constructor (Hyundai)
French Competition Authority (Paris)
Automotive aftermarket* The Autorité de la concurrence dismisses the complaint filed by several garage owners against Hyundai The complaint filed by the garage owners Three car garages referred a case to the Autorité de la concurrence regarding practices that would have been implemented by (...)

The Croatian Competition Authority dismisses a complaint that a company violated competition rules in the transport market (HŽ Infrastruktura)
Croatian Competition Agency (Zagreb)
HŽ Infrastruktura – lack of standing to act* The Croatian Competition Agency (CCA) received an anonymous complaint regarding the alleged infringement of competition rules by the undertaking HŽ Infrastruktura d.o.o. within the meaning of Competition Act. The anonymous complainant basically stated (...)

The Danish City Court of Hillerod fines a demolition company for exchanging prices with a competing company in four cases (Nedrivningsaktieselskabet J. Jensen)
Danish Competition and Consumer Authority (Copenhagen)
Denmark: Demolition Company fined DKK 1 million in bid rigging case* The City Court of Hillerød has fined the demolition company Nedrivningsaktieselskabet J. Jensen DKK 1 million for exchanging prices with a competing demolition company in four cases. Moreover, the City Court fined two members (...)

The US District Court for the Southern District of Florida receives an antitrust claim against bitcoin companies concerning alleged coordination in order to restrain trade (United American Corp / Bitmain)
Constantine Cannon (New York)
The First Blockchain Antitrust Case. Or Is It?* Legal professionals paying close attention to the still nascent world of blockchains and cyptocurrencies are following what is considered to be the first antitrust case involving cryptocurrencies. For enthusiasts, United American Corp. v. (...)

Unilateral Practices

The EU Commission fines a beer company abusing its dominant position through restrictions of cross-border sales (AB InBev)
DG COMP (Brussels)
Antitrust: Commission fines AB InBev €200 million for restricting cross-border sales of beer* The European Commission has fined AB InBev €200 409 000 for breaching EU antitrust rules. AB InBev, the world’s biggest beer company, has abused its dominant position on the Belgian beer market by (...)

The EU Commission fines a company for abusing its dominant position on the Belgian market by restricting cheaper imports of beer from the Netherlands into Belgium (AB Inveb)
Gomez Acebo & Pombo (Brussels)
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Gomez Acebo & Pombo (Brussels)
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Gomez Acebo & Pombo (Brussels)
The Commission has imposed a fine on AB Inveb for abusing its dominant position on the Belgian market by restricting cheaper imports of Jupiler beer from the Netherlands into Belgium AB Inveb is the largest beer brewer in the world. In Belgium, AB Inveb’s most popular beer is Jupiler, (...)

The EU Commission fines a company for restricting cross-border sales in the Belgian beer market (AB InBev)
Van Bael & Bellis (Brussels)
On 13 May 2019, the European Commission (the “Commission”) announced that it had issued a decision imposing a fine of just over € 200 million on AB InBev for breaching Article 102 Treaty on the Functioning of the European Union (“TFEU”). According to the Commission, AB InBev abused its dominant (...)

The Belgian Parliament adopts law regarding abuse of economic dependence and unfair, misleading and aggressive practices between undertakings
Simmons & Simmons (Brussels)
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Simmons & Simmons (Brussels)
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Simmons & Simmons (Brussels)
On 21 March 2019, the Belgian parliament adopted a law (i) expanding the scope of Belgian competition law to also cover abuses of economic dependence, (ii) introducing a greylist and a blacklist of clauses in B2B agreements and (iii) prohibiting certain unfair, misleading and/or aggressive (...)

Mergers

The German Competition Authority announces the withdrawal of a merger notification between companies in the information technology sector (IBM / T-Systems)
German Competition Authority (Bonn)
IBM withdraws notification of its acquisition of staff, hardware and software from T- Systems’ mainframe business after the Bundeskartellamt expressed concerns* Bonn, 7 June 2019: IBM Deutschland GmbH, Ehningen, has withdrawn its notification of plans to acquire essential hard and software as (...)

The Mexican Competition Authority blocks a concentration between a retail company and a company offering logistical services to retailers (Walmart / Cornershop)
Mexican Competition Authority (Mexico City)
COFECE blocked Walmart/Cornershop concentration* • The proposed deal could generate incentives to unduly displace or block competitors’ access to the Cornershop platform and/or hinder the development of new platforms. • The new economic agent resulting from the transaction would gain sufficient (...)

The EU General Court rejects a legal challenge to conditional clearance of a joint venture in the wholesale provision of premium pay-TV sports channels market (Vodafone / Liberty Global)
Van Bael & Bellis (Brussels)
On 23 May 2019, the General Court of the European Union (“GC”) rejected a legal challenge brought against the European Commission’s (“Commission”) conditional clearance of the Liberty Global / Vodafone joint venture in the Netherlands by rival KPN (see VBB on Competition Law, Volume 2016, No. 8). (...)

The French Competition Authority clears a merger in the poultry slaughterhouses market despite very high market shares (Les Volailles Rémi Ramon / Sofral / LDC Volaille)
French Competition Authority (Paris)
Poultry industry* The Autorité de la concurrence gives clearance to the takeover of poultry slaughterhouses Les Volailles Rémi Ramon and Sofral by the LDC group (Le Gaulois, Maître Coq et Fermiers de Loué), which contributes to strengthening the French poultry sector. Background The Autorité (...)

The French Competition Authority clears a merger in the sector of retail distribution of clothing and footwear (The Kooples / Maus Frères)
French Competition Authority (Paris)
Clothing and footwear* The Autorité de la concurrence clears the takeover of the company The Kooples Group by the group Maus Frères (Lacoste, Aigle and Gant) On 17 April 2019, the group Maus Frères notified the Autorité de la concurrence his project of taking over the company The Kooples Group. (...)

The French Competition Authority clears a merger in the metalworking market (Ascoval / British Steel)
French Competition Authority (Paris)
Metalworking industry* The Autorité de la concurrence clears the takeover of the Ascoval company by the British Steel group. After the decision of the Strasbourg General court of first instance of 2 May 2019, which validated the takeover of the steel plant Ascoval by the British Steel group, (...)

The Belgian Competition Authority clears a merger subject to remedies in the TV channels platforms market (De Vijver Media / Telenet)
Belgian Competition Authority (Brussels)
The Competition College of the BCA has approved conditionally the acquisition of sole control of De Vijver Media by Telenet* the Competition College of the Belgian Competition Authority (BCA) has approved conditionally on 13 May 2019 the acquisition of sole control by Telenet Group BVBA (...)

The EU Commission opens an in-depth investigation regarding a merger in the audiovisual sector (Telia / Bonnier Broadcasting)
DG COMP (Brussels)
Mergers: Commission opens in-depth investigation into Telia Company’s proposed acquisition of Bonnier Broadcasting* The European Commission has opened an in-depth investigation to assess the proposed acquisition of Bonnier Broadcasting by Telia Company under the EU Merger Regulation. The (...)

The Mexican Competition Authority submits to public consultation the draft modifications to the guidelines for concentration notification via electronic means and the draft modifications of the regulatory provisions on the use of electronic means
Mexican Competition Authority (Mexico City)
COFECE submits for public consultation the modification to the Guidelines for Concentration Notification via Electronic Means and the Regulatory Provisions on the Use of Electronic Means* • The consultation period for the Guidelines is 30 working days, while the period for the Provisions is 20 (...)

The Czech Competition Authority clears a merger subject to remedies in the distribution market of non-original spare parts for light vehicles (LKQ / Heptus 292)
Czech Competition Authority (Brno)
THE OFFICE APPROVED THE MERGER OF LKQ AND HEPTUS 292 ON THE DISTRIBUTION MARKET OF NON-ORIGINAL SPARE PARTS, SUBJECT TO COMMITMENTS* On 10 May 2019, the Office for the Protection of Competition issued a decision authorizing LKQ German Holdings GmbH to take sole control over the company heptus (...)

The German Competition Authority clears a merger in the book retail sector (Thalia / Mayersche Buchhandlung)
German Competition Authority (Bonn)
Merger between Thalia and Mayersche Buchhandlung cleared* The Bundeskartellamt has today cleared the merger between the two bookstore chains Thalia and Mayersche Buchhandlung. Thalia and Mayersche are both large bookstore chains which altogether operate 288 bookstores in Germany. Andreas (...)

The Croatian Competition Authority clears a merger in the sugar market within the context of full liberalization and abolition of production caps on sugar beet in the internal market (Viro Grupa / Tvornica šećera Osijek)
Croatian Competition Agency (Zagreb)
CCA clears joint venture in sugar market created by Viro Grupa and Tvornica šećera Osijek* The concentration on the basis of which a joint venture is created in the sugar production and the wholesale business means the consolidation of the sugar market in Croatia as a result of full (...)

The German Competition Authority prohibits a merger in the printing industry (MBO / Heidelberger Druckmaschinen)
German Competition Authority (Bonn)
Bundeskartellamt prohibits acquisition of MBO group by Heidelberger Druckmaschinen AG* Bonn, 7 May 2019: The Bundeskartellamt has today prohibited the proposed acquisition of all the shares in HB Vermögensverwaltungsgesellschaft mbH & Co. KG by Heidelberger Druckmaschinen AG. HB (...)

The Ukrainian Competition Authority imposes a fine of EUR 1.8 million for ’gun jumping’ in a merger in the heavy industry sector, and does not clear the transaction due to economic sanctions on the seller’s beneficiary (TAS group / Dniprometyz)
Redcliffe Partners (Kyiv)
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Redcliffe Partners (Kyiv)
The facts of the case On 8 November 2017, Devisal Limited, a Cyprus subsidiary of the financial/industrial group TAS (the "TAS Group"), filed a merger filing requesting the Antimonopoly Committee of Ukraine (the "AMC") to approve the acquisition of a controlling stake in the Private Joint (...)

The Ukrainian Competition Authority imposes a record-breaking fine of EUR 1.9 million for failure to obtain merger clearance for a notifiable concentration in the heavy industry sector, despite also finding that it did not raise any competition concerns (DCH group / Dnipro Metallurgical Plant / Evraz group)
Redcliffe Partners (Kyiv)
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Redcliffe Partners (Kyiv)
The facts of the case On 6 March 2018, SENALIOR INVESTMENTS LIMITED, a Cyprus subsidiary of the DCH group (the "DCH Group", the "Acquirer’s Group") indirectly acquired a controlling stake in Private Joint Stock Company "Dnipro Metallurgical Plant" ("DMP", the "Target"), a Ukrainian plant, (...)

State Aid

The EU Commission opens an in-depth investigation into Lithuanian electricity strategic reserve measure (AB Lietuvos Energija)
DG COMP (Brussels)
State aid: Commission opens in-depth investigation into Lithuanian electricity strategic reserve measure* The European Commission has opened an in-depth investigation to assess whether Lithuanian support to energy company AB Lietuvos Energija in the context of a strategic reserve measure may (...)

The EU General Court annuls the Commission decision ordering Spain to recover € 18 million of incompatible State aid (Real Madrid)
Gomez Acebo & Pombo (Brussels)
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Gomez Acebo & Pombo (Brussels)
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Gomez Acebo & Pombo (Brussels)
On 22 May 2019, the General Court rendered its judgment on the action for annulment filed by Real Madrid against the Commission Decision of 4 July 2018 that (i) declared that the football club had been granted incompatible State aid worth EUR 18 million; and (ii) ordered Spain to recover this (...)

The EU General Court holds that the EU Commission was wrong to classify a progressive tax on the retail sector involving a high starting threshold as State aid (Polish tax on the retail sector)
Skadden, Arps, Slate, Meagher & Flom (Brussels)
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Simmons & Simmons (Brussels)
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Simmons & Simmons (London)
The EU’s General Court has rejected the EU Commission’s classification of a Polish tax on the retail sector as State aid: Poland v Commission (Joined Cases T-836/16 and T-624/17). The fact that the tax was progressive in nature with a high threshold was not sufficient to meet the requirement that (...)

The EU Commission approves provisionally under EU State aid rules the support granted by Slovakia to an electric utility company (Slovenské Elektrárne)
DG COMP (Brussels)
State aid: Commission approves provisional measure ensuring security of local electricity supply in Slovakia* The European Commission has approved under EU State aid rules the compensation granted by Slovakia to electric utility company Slovenské Elektrárne a.s. for temporarily supplying a (...)

The EU Court of Justice provides guidance on the assessment of violations of free movement of capital in relation to State aid scheme (A-Fonds)
Van Bael & Bellis (Brussels)
On 2 May 2019, the Court of Justice of the EU (“ECJ”) delivered a judgment on a request for a preliminary ruling by the Dutch Court of Appeal of ’s-Hertogenbosch. The request was made in proceedings between A-Fonds, an investment undertaking governed by German law, and the Dutch tax (...)

The EU General Court confirms the compatibility of a polish State aid granted to its postal operator (Inpost Paczkomaty)
Arendt & Medernach (Luxembourg)
The source of this dispute is a Commission decision not to raise objections to the measure notified by Polish authorities concerning the aid granted to Poczta Polska ("PP") in the form of compensation for the net cost of fulfilling its universal postal service obligations for the period between (...)

Procedures

The Italian Supreme Court clarifies the evidentiary value of a competition infringement established by the Bank of Italy in follow-on actions (Bosco / Banca Popolare di Bergamo)
Desogus Law Office (Cagliari)
Introduction By the judgment handed down in Bosco v Banca Popolare di Bergamo, the Italian Court of Cassation has considered the evidentiary value of a decision made by the Bank of Italy concerning an anti-competitive practice in the banking sector. The question addressed by the Court of (...)

The International Competition Network adopts framework for competition Agency procedures and new recommended practices for investigative process
International Competition Network (ICN)
Today, the International Competition Network (ICN) concluded its 18th annual conference with approval of new work on procedural fairness, vertical mergers, enforcement cooperation, agency organizational design, leniency, private enforcement, and vertical restraints. The conference took place (...)

The US Supreme Court rejects an attempt to block consumer claims against a big tech company under indirect-purchaser rule (Apple / Pepper)
Constantine Cannon (New York)
Apple v. Pepper: Supreme Court Rejects Attempt to Block Consumer Claims Under Indirect-Purchaser Rule* The Supreme Court on Monday issued a much-anticipated decision in the Apple v. Pepper case, where iPhone owners are accusing Apple of monopolizing the retail market for iOS applications, or (...)

The US Supreme Court holds that the claims of consumers purchasing apps from a big tech app store may proceed as they are direct purchasers of the big tech company (Apple / Pepper)
Covington & Burling (Washington)
Appellate and Supreme Court On May 13, 2019, the Supreme Court (“the Court”) announced its 5-4 decision in Apple, Inc. v. Pepper, permitting iPhone users to proceed with an antitrust suit against Apple alleging that it monopolized the retail market for iPhone apps. The Court emphasized that it (...)

The US Court of Appeals for the sixth circuit establishes test for determining whether the conduct of joint ventures should be analysed under the rule of reason test (The Medical Center at Elizabeth Place / Atrium Health System)
McDermott Will & Emery (Chicago)
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McDermott Will & Emery (Washington)
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McDermott Will & Emery (Chicago)
A recent decision by the US Court of Appeals for the Sixth Circuit is important for competitors involved in joint ventures because it states what mode of antitrust analysis—the per se rule or the rule of reason—applies to the conduct of joint ventures when it is challenged as anticompetitive. The (...)

The EU Court of Justice holds that national rules on limitation of antitrust damages claims may violate the principle of effectiveness (Cogeco)
Hogan Lovells (Munich)
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Hogan Lovells (Munich)
The European Court of Justice in Cogeco rejects a direct effect of the Damages Directive in the pre-implementation phase, but establishes that the principle of effectiveness may itself render national rules on limitation of antitrust damages claims ineffective. The European Court of Justice (...)

Regulatory

The French Competition Authority launches a thematic study on trade union and professional bodies
French Competition Authority (Paris)
The Autorité de la concurrence launches a thematic study on trade union and professional bodies* The directive No. 2019/1 (known as "ECN +"), published in the OJEU on 14 January 2019, aims to provide competition authorities with the means to implement the competition rules more effectively and (...)

The Mexican Competition Authority launches a market study in retail food and beverage sector
Mexican Competition Authority (Mexico City)
COFECE initiates market study in retail food and beverage sector* • COFECE’s electronic mail address: estudiocomercio@cofece.mx is made available to receive any element deemed relevant for the assessment of the sector, from a competition perspective. • The study may identify market structures, (...)

The EU Parliament and Council release directive on unfair trading practices in B2B relationships in the agricultural and food supply chain
Havel, Holasek & Partners (Brno)
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Havel, Holasek & Partners (Prague)
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Havel, Holasek & Partners (Prague)
Does the Directive on Unfair Trading Practices Change Anything? The Directive on unfair trading practices in business-to-business relationships in the agricultural and food supply chain has been adopted recently. For a long time, this sector has been on the radar of EU bodies, as sufficient (...)

The EU Commission publishes a report on competition policy for the digital era
Norton Rose Fulbright (Brussels)
“Digital Era” Report Bolsters Commissioner Vestager’s Digital Legacy* On April 4, 2019, the European Commission published a report by Jacques Crémer, Yves-Alexandre de Montjoye, and Heike Schweitzer on competition policy for the digital era (the Digital Era Re port, or the Report), the culmination (...)

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