June 2022 - II

General antitrust

The Luxembourg Competition Authority publishes results of sector inquiry into medicines and pharmacies and makes recommendations for regulatory reform
Van Bael & Bellis (Brussels)
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Van Bael & Bellis (Brussels)
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Van Bael & Bellis (Brussels)
On 16 June 2022, the Luxemburg Competition Authority (LCA) published its report (the Report) detailing the outcome of a sector inquiry into medicines and pharmacies (see, attached press release and Report). The Report does not analyse possibly anticompetitive behaviour of private firms but (...)

The UK Competition Authority plans market investigation into mobile browsers and cloud gaming (Apple / Google)
United Kingdom’s Competition Authority - CMA (London)
Apple and Google “hold all the cards” with interventions needed to give innovators and competitors a fair chance to compete in mobile ecosystems CMA plans market investigation into mobile browsers and cloud gaming* The Competition and Markets Authority (CMA) is consulting on the launch of a (...)

The Latvian Parliament strengthens the Competition Authority’s independence with amendments to the Competition Law
Latvian Competition Council (Riga)
The Saeima strengthens the independence of the Competition Council with amendments to the Competition Law* On June 9, the Parliament (Saeima) made amendments to the Competition Law aimed at strengthening the Competition Council (CC), providing the necessary guarantees of independence, (...)

The US FTC announces launch of inquiry into the prescription drug middleman industry
US Federal Trade Commission (FTC) (Washington)
FTC Launches Inquiry Into Prescription Drug Middlemen Industry* Agency to Scrutinize the Impact of Vertically Integrated Pharmacy Benefit Managers on the Access and Affordability of Medicine The Federal Trade Commission announced today that it will launch an inquiry into the prescription drug (...)

The EU Commission and the UK Competition Authority issue new rules on vertical arrangements
Ashurst (Brussels)
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Ashurst (London)
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Ashurst (Brussels)
On 1 June 2022, the revised EU Vertical Block Exemption Regulation, Regulation 2022/720, (’VBER’) and Vertical Guidelines entered into force. On the same day, the UK Vertical Agreement Block Exemption Order (’VABEO’) entered into force. Both the VBER and VABEO provide for a one year transitional (...)

The EU Commission sets out new rules on dual distribution agreements, parity clauses and resale price maintenance in its revised Vertical Block Exemption Regulation and guidelines on vertical restraints
Hogan Lovells (Dusseldorf)
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Hogan Lovells (Dusseldorf)
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Hogan Lovells (Brussels)
On 1 June 2022, the European Commission’s revised Vertical Block Exemption Regulation (“VBER”) and the accompanying Guidelines on Vertical Restraints entered into force. Adding to our article on the highly controversial issue of dual distribution, this post focuses on three other essential (...)

The US Court of Appeals for the Fifth Circuit holds that Standard Essential Patent holders may choose to only license end-product makers (Continental / Avanci)
FOSS Patents
Even Apple’s and Tesla’s amicus briefs didn’t help: Continental, which is generally known for making tires but also in the telematics control unit (TCU) business, just suffered a defeat in an appeals court that has intercontinental implications for the car industry’s debate over the appropriate (...)

Anticompetitive practices

The EU Commission sends statement of objections to Czech and Austrian rail incumbents over alleged collective boycott (České dráhy / Österreichische Bundesbahnen)
DG COMP (Brussels)
Antitrust: Commission sends Statement of Objections to České dráhy and Österreichische Bundesbahnen over alleged collective boycott* The European Commission has informed České dráhy (‘ČD’) and Österreichische Bundesbahnen (‘ÖBB’), the Czech and Austrian rail incumbents, of its preliminary view that they (...)

The US DoJ receives plea of guilt to antitrust charges from commercial flooring contractor and its former president (Commercial Carpet Consultants / Jerry P Watson)
US Department of Justice (Washington)
Commercial Flooring Contractor and Its Former President Plead Guilty to Antitrust Charges* Fourth Corporation and Seventh Individual Charged in an Ongoing Investigation Commercial Carpet Consultants Inc., a Chicago-based commercial flooring contractor, and its former president, Jerry P. (...)

The Brazilian Competition Authority finds mobile phone operators liable for cartel arrangements (Claro / Oi Movel / Telefonica Brasil)
Brazilian Administrative Council for Economic Defense (CADE) (Brasilia)
CADE fines Claro, Oi Móvel and Telefônica 783 million reais for antitrust violations in Correios’ tender* The procurement process for data transmission services took place in 2015 On 11 May 2022, the Tribunal of the Administrative Council for Economic Defense (CADE) convicted the mobile phone (...)

The Brazilian Competition Authority imposes a large fine on two HDPE pipe manufacturers and three individuals for market sharing, bid rigging and price fixing (Brastubo / Poly Easy)
Brazilian Administrative Council for Economic Defense (CADE) (Brasilia)
CADE convicts cartel members in the Brazilian market of pipes and fittings* The authority convicted Brastubo, Poly Easy, and three individuals to pay fines amounting to BRL 33.1 million On 27 April 2022, the Administrative Council for Economic Defense (CADE) convicted the firms Brastubo (...)

The Brazilian Competition Authority fines a provider of high-cost medical devices for bid rigging (St Jude Medical Brasil)
Brazilian Administrative Council for Economic Defense (CADE) (Brasilia)
CADE signs agreement in cartel investigation into public tender for orthoses, prostheses, and high-cost medical devices* The firm Saint Jude Medical Brasil must pay BRL 56.4 million as a financial contribution On 27 April 2022, the Administrative Council for Economic Defense (CADE) signed a (...)

The Hong Kong Court of Appeal issues judgement which finds housing contractors fully liable for price fixing and market sharing
Hogan Lovells (Beijing)
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Hogan Lovells (Beijing)
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Hogan Lovells (Hong Kong)
On 2 June 2022, the Hong Kong Court of Appeal (“Court”) handed down a judgment almost doubling the financial penalties imposed by the Competition Tribunal (“Tribunal”) on five respondents in two decisions. The Tribunal had earlier found the respondents to have contravened the Competition Ordinance (...)

The Hong Kong Competition Authority welcomes the Court of Appeal’s ruling which upheld the fines that it had imposed on five companies for market sharing and price fixing in the public housing industry
Hong Kong Competition Commission (Wanchai)
Competition Commission welcomes Court of Appeal ruling on pecuniary penalties* The Competition Commission (“Commission”) welcomes the judgment (“Judgment”) handed down by the Court of Appeal today (2 June) in relation to appeals lodged by the Commission against pecuniary penalties imposed by the (...)

The German Competition Authority approves plans for cooperation in the automotive industry to build a data network (Catena-X)
German Competition Authority (Bonn)
First component for Gaia-X: Bundeskartellamt gives green light for establishing data network for automotive industry (Catena-X)* Bonn, 24 May 2022: The Bundeskartellamt has no objections to the planned start of the “Catena-X” cooperation, which aims to create a data network for collaboration in (...)

The Croatian Competition Authority detects first bid rigging cartel in public procurement (Agro-Vir/ Agrodalm / Diljexport)
Croatian Competition Agency (Zagreb)
CCA detects first bid rigging cartel in public procurement* In its infringement decision of 28 April 2022, the Croatian Competition Agency found that in the period from 4 June 2012 to 1 January 2014 the undertakings Agro-Vir d.o.o., Agrodalm d.o.o. and Diljexport d.o.o., all from Zagreb, (...)

Unilateral Practices

The Hellenic Competition Authority carries out an unannounced inspection into the transport industry
Hellenic Competition Commission (Athens)
Unannounced inspection by the HCC in the transport industry* On 2/6/2022, officials of the Hellenic Competition Commission (HCC) carried out an unannounced inspection at the premises of an undertaking active in the transport sector, in the context of investigating a possible abuse of dominant (...)

The French Supreme Court agrees with the Paris Court of Appeal’s decision reducing a €25M fine to €21M for abuse of dominance by obstructing the entrance of generic drugs onto the market (Janssen Cilag)
Van Bael & Bellis (Brussels)
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Van Bael & Bellis (Brussels)
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Van Bael & Bellis (Brussels)
On 1 June 2022, the French Supreme Court (Cour de cassation) upheld the judgment of the Paris Court of Appeal, which in turn largely upheld the 2017 decision of the French Competition Authority (FCA) to impose fines of EUR 25 million on Janssen Cilag and its parent company Johnson & Johnson (...)

The Italian Competition Authority fines a drug manufacturer €3.5M for charging excessive prices to the National Health Service for a life-saving drug (Leadiant)
Italian Competition Authority (Rome)
A524 - ICA fines Leadiant 3,5 million euros for abusing its dominant position* The Italian Competition Authority (ICA) found that since June 2017 Leadiant has charged the Italian NHS unfairly excessive prices for the sale of a life-saving drug. Similar proceedings were conducted by competition (...)

The Spanish Competition Authority fines the national kennel club for imposing unfair conditions on dog owners and raising barriers to entry for potential rivals (Royal Canine Society of Spain)
Spanish Competition Authority (CNMC) (Madrid)
The CNMC fines the Royal Canine Society of Spain for hindering the activity of rival associations and discriminating against canine judges.* The Royal Canine Society of Spain (RSCE in Spanish) has abused its dominant position to hinder the entry of other organisations, which are authorised by (...)

Mergers

The Australian Competition Authority outlines competition concerns in relation to the proposed acquisition between two rail companies (Aurizon / One Rail)
Australian Competition and Consumer Commission (Canberra)
ACCC consults on Aurizon’s proposed One Rail acquisition and divestiture* The ACCC has outlined preliminary competition concerns with Aurizon’s (ASX: AZJ) proposed acquisition of One Rail in a statement of issues published today. The ACCC is seeking public comment on whether these concerns (...)

The Brazilian Competition Authority recommends conditional clearance of the acquisition transaction between two pharmaceutical companies (Pague Menos / Extrafarma)
Brazilian Administrative Council for Economic Defense (CADE) (Brasilia)
CADE’s investigative arm recommends Pague Menos’ acquisition of Extrafarma be conditionally cleared* The Tribunal of the agency will review the case for a final decision CADE’s investigative body remitted the acquisition of the pharmacy chain Extrafarma to the Tribunal, suggesting its approval (...)

The US FTC seeks to block another two hospital mergers following recent successes and growing concerns over increased concentration in the hospitals sector (HCA Healthcare / Steward Health Care System) (RWJ Barnabas Health / Saint Peter’s Healthcare System)
Hogan Lovells (Washington)
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Hogan Lovells (Washington)
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Hogan Lovells (Washington)
On the heels of two successful hospital merger challenges in the last year, the FTC announced on Thursday that it is bringing two new cases seeking to block proposed hospital transactions: RWJBarnabas Health’s (RWJ’s) acquisition of Saint Peter’s Healthcare System (Saint Peter’s) in New Jersey and (...)

The Canadian Competition Authority approves an acquisition of a pharmacy by a rival following commitments to sell-off assets in two local markets in Saskatchewan (Neighbourly Pharmacy / Rubicon Pharmacies)
Canadian Competition Bureau (Gatineau)
Competition Bureau preserves competition in supply of pharmacy products and services in Saskatchewan* The Competition Bureau announced today that it has reached an agreement with Neighbourly Pharmacy Inc. to resolve competition concerns related to its proposed acquisition of Rubicon Pharmacies (...)

The Irish Competition Authority conditionally clears the merger between two supermarket chain companies subject to legally binding commitments (Tesco / Joyce)
Irish Competition Authority (Dublin)
CCPC requires binding commitments to clear Tesco Ireland’s proposed acquisition of Joyce’s Supermarkets* The Competition and Consumer Protection Commission (CCPC) has cleared, subject to a number of legally binding commitments, the proposed acquisition by Tesco Ireland Limited (Tesco) of sole (...)

The Canadian Competition Authority permits a paper manufacturer to acquire rival subject to divestment of pulp mill (Kruger / Paper Excellence)
Canadian Competition Bureau (Gatineau)
Competition Bureau approves Kruger as buyer of Paper Excellence’s pulp mill in Kamloops, B.C* The Competition Bureau has approved Kruger Specialty Papers Holding L.P., an affiliate of Kruger Inc., as the purchaser of Paper Excellence’s pulp mill in Kamloops, British Columbia, as required by an (...)

The Cypriot Competition Authority receives notification for an acquisition of a pharmaceutical company by a Luxembourg-based investment firm (Astrong Fund VIII / Corden Pharma)
Commission for the Protection of Competition of the Republic of Cyprus (Nicosia)
Notification of a concentration concerning the acquisition by Astrong Fund VIII, SCSp of the share capital of Corden Pharma Holding S.E. and Corden Pharma US Holdings, Inc.* The Service of the Commission for the Protection of Competition announces that it has received a notification of (...)

The Italian Competition Authority unconditionally clears a banking merger operation between two national banks (BPER / Carige)
Giannino SI (Monserrato)
By its decision recently handed down in BPER/Carige, the Italian Competition Authority (ICA) has unconditionally authorized the concentration between two national banks, BPER Banca Spa (BPER) and Banca Carige Spa (Carige). By this transaction (the BPER/Carige transaction), BPER intended to (...)

The New Zealand Competition Authority clears acquisition between two vegetarian food manufacturers (Life Health Foods / Chalmers Organics)
New Zealand Commerce Commission (Wellington)
Life Health Foods cleared to acquire Chalmers Organics* The Commerce Commission has granted clearance for Life Health Foods NZ Limited to acquire the business and assets of Chalmers Organics Limited. Life Health Foods and Chalmers Organics both supply a range of vegetarian and plant-based (...)

The Croatian Competition Authority approves a merger between two media and entertainment companies (CME Media / RTL Hrvatska)
Croatian Competition Agency (Zagreb)
CME MEDIA AND RTL HRVATSKA MERGER APPROVED* In its compatibility assessment procedure, the CCA found that the concentration in question does not produce significant effect on competition, given the fact that it does not create or strengthen a dominant position of the undertakings concerned in (...)

The French Competition Authority approves a merger between two biomedical laboratories subject to commitments to not acquire any further interest in a particular region for the proceeding decade (Bio Pôle Antilles / Inovie)
French Competition Authority (Paris)
Medical pathology laboratories: the Autorité clears, subject to conditions, the takeover of the company Bio Pôle Antilles by the Inovie group For the first time, the Autorité de la concurrence considers that a non-controlling minority stake concomitant with an exclusive takeover is likely to harm (...)

The French Competition Authority unconditionally clears the purchase of a downstream competitor in the mobile telecommunications market by a major national telecoms and media group (Coriolis / Altice France)
French Competition Authority (Paris)
The Autorité clears the acquisition of Coriolis by Altice France* Altice, a French group active in the telecommunications sector, notified the Autorité de la Concurrence on 18 March 2022 of a plan to acquire Coriolis, also active in this sector. Parties to the transaction Altice France is a (...)

The French Competition Authority clears the acquisition of a global cash register solutions company by a rival (Bimédia / DL Software)
French Competition Authority (Paris)
The Autorité clears the acquisition of Bimédia by DL Software, which controls Devlyx*Background After examining Bimédia’s acquisition transaction by the DL Software group, which owns Devlyx, the Autorité cleared the transaction without conditions, considering that it was not likely to harm (...)

The UK Government announces a series of reforms for strengthening the UK Competition regime
Hogan Lovells (London)
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Hogan Lovells (London)
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Hogan Lovells (London)
The UK Government recently announced a series of reforms for strengthening the UK competition regime, including measures that will increase penalties for non-compliance, speed up antitrust investigations and permit better scrutiny of certain mergers – in particular, ‘killer acquisitions’ (...)

The Turkish Competition Authority unconditionally clears the acquisition of a machine manufacturer’s process and motion control business by its parent company through a reverse Morris trust (Regal / Rexnord)
ELIG Gürkaynak Attorneys-at-Law (Istanbul)
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ELIG Gürkaynak Attorneys-at-Law (Istanbul)
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ELIG Gürkaynak Attorneys-at-Law (Istanbul)
On 15 April 2021, the Competition Board (the Board) unconditionally approved Regal Beloit Corporation’s acquisition of sole control over Rexnord Corporation’s process and motion control (PMC) business segment. Facts The transaction concerns an acquisition carried through reverse Morris trust (...)

State Aid

The EU Commission approves €400M Portuguese recapitalisation scheme to support companies affected by the COVID-19 pandemic Free
DG COMP (Brussels)
State aid: Commission approves €400 million Portuguese recapitalisation scheme to support companies affected by the coronavirus pandemic* The European Commission has approved a €400 million Portuguese scheme to support strategic companies affected by the coronavirus pandemic. The scheme was (...)

The EU Commission approves €8.4B Spanish and Portuguese measures to lower electricity prices amid energy crisis
DG COMP (Brussels)
State aid: Commission approves Spanish and Portuguese measure to lower electricity prices amid energy crisis* The European Commission has approved, under EU State aid rules, a €8.4 billion Spanish and Portuguese measure aimed at reducing the wholesale electricity prices in the Iberian market (...)

The EU Commission approves €453.25M Portuguese restructuring aid in favour of a regional air carrier (SATA Group)
DG COMP (Brussels)
State aid: Commission approves €453.25 million Portuguese restructuring aid in favour of SATA Group* The European Commission has approved, under EU State aid rules, Portugal’s plans to grant air carrier SATA Air Açores (‘SATA’) restructuring aid for a total amount of €453.25 million. The measure (...)

Procedures

The EU General Court quashes dominant chip manufacturer’s antitrust fine for "exclusivity payments" and censures the EU Commission for multiple due process and substantive errors (Qualcomm)
White & Case (Brussels)
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White & Case (Brussels)
The General Court of the European Union delivered a blow to the European Commission in fully annulling its Qualcomm (exclusivity payments) decision of 2018 and a EUR 997 million fine. Qualcomm v Commission is the first annulment of an Article 102 TFEU decision adopted by Commissioner Margrethe (...)

The UK Supreme Court overturns the ruling of the Court of Appeal on costs in a dispute between the Competition Authority and two pharmaceutical companies (Pfizer / Flynn Pharma)
Herbert Smith Freehills (London)
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Herbert Smith Freehills (London)
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Herbert Smith Freehills (London)
On 25 May 2022 the Supreme Court overturned the Court of Appeal’s ruling on costs in Pfizer and Flynn Pharma and concluded that the Competition Appeal Tribunal (CAT) had applied the correct test when awarding a proportion of their costs against the CMA. The Court of Appeal had held that, (...)

The EU General Court confirms the Commission’s decision fining an audio visual company €28M for gun jumping in warehousing scheme (Canon / Toshiba)
White & Case (Brussels)
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White & Case (Brussels)
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White & Case (Brussels)
On 18 May 2022, the EU General Court (GC) upheld the European Commission’s (EC) € 28 million fine imposed on Canon for gun-jumping in the context of a (somewhat unique) so-called warehousing structure. The judgment confirms that structures such as the one at issue are not allowed under EU law (...)

The Ankara Regional Administrative Court stays the execution of the Competition Authority’s decision to fine an online marketplace for obstructing a dawn raid (Sahibinden.com)
ACTECON (Istanbul)
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ACTECON (Istanbul)
Introduction As is well known, the Turkish Competition Authority (“TCA”) is authorized to examine all data and documents on electronic platforms and information systems during the on-site inspections pursuant to the amendment dated 16.06.2020 on Article 15 of Law No. 4054 on the Protection of (...)

The US Court of Appeals for the Ninth Circuit, sitting en banc, declares that a class can be certified without considering whether there are more than a de minimis number of uninjured class members (Olean Wholesale Grocery / Bumble Bee Foods)
Hausfeld (San Francisco)
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Hausfeld (Washington)
Rule 23(b)(3) of the Federal Rules of Civil Procedure has been the basic mechanism for antitrust classes to obtain monetary damages. This is because antitrust violations usually meet the requirement of issues predominantly common to all class members. For more than a decade now, however, courts (...)

Regulatory

The EU Parliament signs the Commission’s proposal which would allow the Commission to examine whether foreign subsidies have a potential negative impact on the internal market
Covington & Burling (Brussels)
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Covington & Burling (Brussels)
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Covington & Burling (Brussels)
On 4 May 2022, the European Parliament (the “Parliament”) adopted its position on the proposal of the European Commission (the “Commission”) for a Regulation on foreign subsidies distorting the internal market (the “Foreign Subsidies Regulation”) (see our alert on the proposal). It confirms the (...)

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