March 2008

Anticompetitive practices

The Hellenic Competition Commission imposes a € 470,000 fine for fixing sales prices and preventing passive sales between wholesaler in the frozen vegetables for domestic consumption market (Geniki Trofimon -Vivartia)
University of East Anglia
Background On 31 March 2008, the Hellenic Competition Commission (HCC) imposed a €468,870 fine on Geniki Trofimon A.E. (part of Vivartia A.E.) for fixing sales prices and abusing its dominant position in the market for frozen vegetables for domestic consumption. The company was found to have (...)

The Belgian Prosecutor refuses request for preliminary measures in a pharmaceutical “refusal to supply” case (Bofar)
Altius (Brussels)
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Johnson & Johnson (Brussels)
Decision On 26 March 2008, the Belgian Prosecutor refused a request for preliminary measures made by Bofar NV (‘Bofar’). In December 2007, Bofar had filed a complaint against nine pharmaceutical companies for infringing Articles 81 and 82 EC Treaty and their Belgian equivalents, Articles 2 and 3 (...)

The Czech Supreme Court refers to the EU Commission’s notice on ancillary restraints in a private dispute over non-competition Clause in SPA (K.D/Z.)
Skils (Prague)
This case concerns litigation before Czech civil courts concerning a breach by a seller of a non-competition clause entered into in connection with a share sale transaction. It shows how Czech civil courts “struggled” with the application of competition law to the transaction. At the end of the (...)

The Romanian Competition Council imposes a fine on a professional association for price-fixing (National Association of Dental Technicians)
Van Bael & Bellis (Brussels)
On 26 March 2008, the Romanian Competition Council imposed a fine of over € 5,500 on the National Association of Dental Technicians for adopting price lists with respect to products manufactured by dental technicians and publishing them in its review. The Council noted that several provisions of (...)

The Spanish Competition Commission holds that the incumbent postal operator no longer discriminates part of its journal editor clients (Prensa / Correos)
Miguel Torres S.A.
Last March, the new Spanish competition authority, the National Competition Commission (CNC, hereafter), published a decision clearing that the Spanish state-owned postal operator (Correos) had proven the cease of its discriminatory prices for which it had been fined in June 2005 by the former (...)

The New York District Court enters a consent decree in a case brought by Attorneys General of New York, Illinois and Michigan, requiring furniture manufacturer to terminate alleged minimum resale price maintenance program (Herman Miller)
McDermott Will & Emery (Washington)
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McDermott Will & Emery (Chicago)
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McDermott Will & Emery (Chicago)
District court case could affect implementation of minimum resale price maintenance programs. Sellers must still exercise great caution when designing minimum resale price programs for their resellers in the United States following the recently settled New York v. Herman Miller, Inc. case. (...)

The Greek Competition Authority fines food group for imposing unlawful vertical restrictions (Vivartia)
Van Bael & Bellis (Brussels)
On 20 March 2008, the Greek Competition Authority found that the country’s largest food group (Vivartia) had imposed various unlawful vertical restrictions. The Competition Authority concluded that between 2004 and 2006 Vivartia had engaged in resale price maintenance with regard to sales of (...)

A German Court holds lawful ban of sales through online auction platforms by retailer (School bags manufacturer)
Compass Lexecon (Hong Kong)
Summary On 13 March 2008 the regional court of Mannheim (Landgericht Mannheim) decided that a manufacturer ("the manufacturer") of school bags does not violate German Competition Law ("GWB") by stopping to supply a retailer ("the retailer") that did not comply with the manufacturer’s conditions (...)

The European Court of Justice rules against claim by Belgian dentists on prohibition on advertising (Doulamis)
Van Bael & Bellis (Brussels)
On 13 March 2008, the European Court of Justice (ECJ) ruled on a preliminary reference made by the Brussels Court of First Instance by finding that a Belgian law that prohibits dental services providers from advertising does not violate the EC competition rules. The Brussels court made the (...)

The UK’s House of Lords issues a leading judgement on criminal antitrust proceedings in the "Norris saga" (Norris)
Clayton Utz (Sydney)
Introduction On 12 March 2008, the UK’s House of Lords (“HOL”) allowed an appeal by Ian Norris, former chief executive of Morgan Crucible plc, against an attempt by the US’s Department of Justice (“DOJ”) to extradite him for (1) price fixing offences having effects in the US and (2) obstruction of (...)

The Romanian Competition Authority fines EUR 22.6 M distributors and manufacturer for sharing insulin portfolio (Eli Lilly / A&A Medical / Mediplus Exim / Relad Pharma)
Peli Filip (Bucharest)
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Peli Filip (Bucharest)
The Romanian Competition Council (the “Council”) continued in 2008 the series of decisions dedicated to the malfunctioning of the Romanian pharmaceutical market, by sanctioning through its decision 15/2008 (i) the insulin producer Eli Lilly Export SA and three of its distributors, A&A Medical (...)

The Romanian Competition Council fines a pharmaceutical producer and three distributors for participation into a market-sharing cartel active on the insulin market (Eli Lilly Export, A&A Medical, Mediplus Exim and Relad Pharma)
Nestor Nestor Diculescu Kingston Petersen (Bucharest)
Following an investigation initiated in July 2005 and which has lasted for almost 3 years, the Romanian Competition Council (RCC) has fined one pharmaceutical producer and three distributors for participation into a market-sharing cartel active between April 2003 and May 2005, imposing fines in (...)

The UK House of Lords establishes that the conspiracy to defraud offence may not replace the cartel offence, for facts before 2003, where no deceit, misrepresentation nor lies are involved (Norris)
Innovate Finance (London)
I - The NHS case On 28 March 2007, Ajit P. and Kirta P., CEO and COO respectively of Goldshield Group, the drug supplier, were arrested in London on suspicion of price-fixing, from 1996 to 2000, concerning generic drugs at the detriment of the UK’s National Health Service (hereinafter “NHS”). (...)

The Lisbon Commerce Court confirms against cartel operating in the Port of Setúbal but reduces fines (Rebonave / Rebosado / Lutamar)
Vieira de Almeida (Lisbon)
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Abreu Advogados (Lisbon)
Following the Portuguese Competition Authority (PCA) decision dated April 2007 imposing a EUR 185.000 fine on REBONAVE, REBOSADO and LUTAMAR (tug services providers in the port of Setúbal involved in a price fixing and client sharing cartel), all three undertakings appealed the decision to the (...)

The UK Office of Fair Trading updates its position on newspapers and magazines work (Newspapers and magazines work)
King’s College (London)
On the 11 March 2008 the OFT published a press release, providing an update on distinct, but linked, work strands regarding the newspaper and magazine sector : (a) the preparation of guidance to assist publishers and distributors in assessing for themselves whether their newspaper and magazine (...)

The European Commission fines international removal services companies (Allied Arthur Pierre, Ziegler..,)
Van Bael & Bellis (Brussels)
On 11 March 2008, the European Commission announced that it had imposed fines totalling € 32,755,500 on ten international removals companies for price fixing, market sharing and bid rigging in the field of international removals services in breach of Article 81 EC. The case was investigated at (...)

An Estonian Circuit Court rules in a criminal case concerning an attempt to fix prices, share markets and engage in collective boycott on the basis of national provisions similar to Article 101 TFEU (Oleg Ossinovski / AS Spacecom)
Cobalt Legal (Estonia)
On 11 March 2008, the Tallinn County Court (a court of appeal) upheld an earlier ruling of Harju County Court, which had convicted a railway freight services provider, AS Spacecom («Spacecom»), and its management board member Oleg Ossinovski of an attempt to agree on restrictions of competition (...)

The Italian last instance Administrative Court annuls for lack of evidence the decision taken by the competition authority in one of the longest cartel cases ever held in Italy (Technical Gas)
Bonelli Erede (Rome)
By its judgment delivered on 7 March 2008, the Italian last instance Administrative Court (“Consiglio di Stato -C.d.S.”) annulled the Italian Authority’s (“AGCM”) decision on the Technical Gas case, on the grounds of a serious lack of evidence of the alleged antitrust infringement. In its decision, (...)

The Italian Administrative Supreme Court dismisses a decision by the Competition Authority condemning all major producers of technical gases for concerted practices (Technical Gas)
Luigi Prosperetti & Partners (Milan)
Background In April 2006 the Italian NCA fined for a total of 56.9 million all major Italian producers of technical gases for a market allocation agreement, which had allegedly been in effect for a substantial period of time. There was indeed proof that in the 1980s - before the enactment, in (...)

The Italian Supreme Administrative Court qualifies the independence criteria applicable to the agent pursuant to EU law upholding the appeal filed by a pharmaceutical company to revoke an antitrust fine imposed by the Italian Antitrust Authority (AstraZeneca)
Rucellai & Raffaelli (Milan)
Upholding the appeal filed by the claimant AstraZeneca, the Italian Supreme Administrative Court (hereinafter also the “Court”) ruled that the illicit conduct of the agent Pan Service - operating in the market for several principals and bearing all the related economical and financial risks - (...)

The Paris Court of Appeal upholds the NCA decision to impose € 580,000 fine on a national scale agreement aimed at hindering the free setting of prices by product distributors (Master Cycle / Bouticycles)
LeMore Avocats
Description of the impugned case The 22 companies implemented a series of anticompetitive agreements and introduced into the terms of sale and other distribution contracts anticompetitive clauses, aimed at hindering the free setting of prices by the product distributors. Small retailers (...)

The Romanian Competition Council fines 6% of their turnover members of a cartel (Fresenius Medical care, Alsifcom Intermed, Opremi Medfarm)
Peli Filip (Bucharest)
The Romanian Competition Council (the “Council”) has issued earlier this year its decision 12/2008 (the “Decision”) regarding (i) the breach of art. 5(1) (f) of the competition Competition Law n° 21/1996 (the “Competition Law”), by Fresenius Medical care SRL, Alsifcom Intermed SRL and Opremi Medfarm (...)

Unilateral Practices

The Spanish Competition Authority adopts a decision on a abuse of dominant position in the transport sector (Estación Sur de Atobuses de Madrid)
Van Bael & Bellis (Brussels)
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Practising Law Institute (New York)
On 31 March 2008, the Spanish Competition Authority adopted a decision finding that Estación Sur de Atobuses de Madrid SA (“Estación Sur”) had abused its dominant position in breach of the Spanish provision equivalent to Article 82 EC. In this regard, the Spanish Competition Authority concluded (...)

The Slovenian Competition Authority finds incumbent telecommunications operator was abusing its dominant position in the inter-operators market for provision of ADSL broadband access in Slovenia (Slovenije Telekom / ISDN, ADSL)
Fatur Law Firm (Ljubljana)
This case started in October 2004, when the Slovenian Competition Authority (“SCA”) under its official authority started the proceedings on the basis of article 10 of the Slovenian Prevention of the Restriction of Competition Act (“SPRCA”) concerning abuse of dominance. The proceedings were (...)

A Macedonian Court quashes a NCA’s decision establishing an abuse of dominance of the incumbent electricity provider on the electricity market (Elektrostopanstvo)
Faculty of Law - University of Macau
Summary The Macedonian Administrative Court quashed the NCA’s decision imposing financial penalties for abuse of dominant position committed by Elektrostopanstvo on the electricity market. The main reason for the annulment consisted in the NCA’s failure to include all requisite information, (...)

The Macedonian Administrative Court confirms the Competition Authority’s decision establishing the exploitative abuse of dominance committed by the incumbent telecom operator (Macedonian Telecom)
Faculty of Law - University of Macau
Summary The Macedonian Administrative Court affirmed the decision of the Macedonian Competition Authority establishing exploitative abuse of dominance by the incumbent telecom operator Macedonian Telecom manifested in the additional charges levied on the customers for issuance of the monthly (...)

The Spanish Competition Authority adopts a decision on a alleged abuse of dominant position (Puertos de Andalucía)
Van Bael & Bellis (Brussels)
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Practising Law Institute (New York)
On 13 March 2008, the Spanish Competition Authority found that Empresa Pública de Puertos de Andalucía (“Puertos de Andalucía”), a public undertaking which runs marinas in the South of Spain, had not abused its dominant position by engaging in predatory pricing. Although the decision found that (...)

The Hungarian Competition Office refuses to use public resources for investigating an allegation of excessive pricing in the electricity sector (Budapesti Elektromos Mûvek Nyrt)
Morley Allen & Overy Iroda (Budapest)
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MVM OVIT (Budapest)
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General Electric (Budapest)
Background In its decision of 10 March 2008 (HCO Decision), the Competition Council of the Hungarian Competition Office (HCO) terminated the proceedings against Budapesti Elektromos Mûvek Nyrt (Elmû). Elmû is the electricity distribution system operator company in the metropolitan area of (...)

The EU Commission finds that Greece has infringed art. 86(1) in conjunction with art. 82 of the EC Treaty by maintaining the preferential access to lignite in favour of the incumbent Greek electricity provider (PPC)
DG COMP (Brussels)
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Chrysses Demetriades (Limassol)
"The importance of access to fuels for competition in the electricity sector: the case of lignite in Greece"* On 5 March 2008 the Commission adopted a Decision finding that the Hellenic Republic had infringed Article 86(1) in conjunction with Article 82 of the EC Treaty by maintaining the (...)

The Estonian Competition Authority holds an injunction in a case concerning abuse of dominance on the basis of Art. 102 TFEU and national provisions (PKL)
COBALT Legal
On 5 March 2008, the Estonian Competition Authority (ECA) granted an injunction against a tugboat service provider aktsiaselts PKL (PKL) prohibiting it from making the provision of services to its non-competing clients conditional on buying the service as a whole from PKL. The basis for (...)

The German Federal Court of Justice confirms decision on infringement of Article 82 EC by a manufacturer of home soda makers (Soda Club II)
Blomstein (Berlin)
Background In February 2006, the German Federal Cartel Office (FCO) found that Soda Club, a manufacturer of home soda makers, had abused its dominant position by requiring customers and dealers to have the carbon dioxide cartridges used in the soda makers refilled solely by Soda Club. The (...)

The German Federal State Court confirms a decision of the Bundeskartellamt finding a supplier guilty of abusing its dominant position under Art. 82 EC by preventing customers from refilling from competing suppliers (Soda-Club II)
Daimler
The German Federal State Court essentially confirmed the German Federal Cartel Office’s allegation against the supplier of Soda-Club machines to make carbonated beverages of abusing its dominant position. The group of undertakings Soda-Club produces and sells machines to make carbonated (...)

The Danish Competition Appeals Tribunal partly confirms and partly annuls a decision of the NCA’s on excessive pricing in the wholesale market for physical electricity in Western Denmark (Elsam III)
Kromann Reumert (Copenhagen)
On 3 March 2008, the Danish Competition Appeals Tribunal decided an appeal against an exces-sive pricing decision made by the Danish Competition Council on 20 June 2007. In the original de-cision, the Council had concluded that Danish electricity producer Elsam had abused its dominant position (...)

The Danish Competition Appeal Tribunal confirms finding of excessive pricing (Elsam)
Van Bael & Bellis (Brussels)
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Practising Law Institute (New York)
On 3 March 2008, the Danish Competition Appeal Tribunal concluded that the Danish electricity production company Elsam A/S (“Elsam”) had abused its dominant position on the market for the wholesale of physical electricity in Western Denmark during the period of 1 January 2005 to 30 June 2006 by (...)

Mergers

The Portuguese Competition Authority clears merger in the market for health plan management services (Tranquilidade / United Health / AdvanceCare)
PLMJ (Lisbon)
On 27 March 2008, the Portuguese Competition Authority (PCA) cleared the acquisition by Companhia de Seguros Tranquilidade SA (Tranquilidade) and Unitedhealth Group International Bv (UHGI), of joint control over Advancecare - Gestão de Serviços de Saúde SA (AdvanceCare), a company that provides (...)

The Latvian Competition Authority approves acquisition in the medical equipment sector (GE Healthcare / Whatman)
Kronbergs & Čukste
On March 26, 2008, after a mere three weeks of investigation, the Latvian Competition Council adopted a decision clearing the acquisition of control over Whatman PLC by GE Healthcare Sciences Ltd., notified on March 5, 2008. Both GE Healthcare Sciences Ltd. (hereinafter «GEHLS») and Whatman PLC (...)

The Spanish Competition Authority expresses concerns about the merger between two German air transport companies and opened an in-depth investigation in Spain (Air Berlin / Condor)
Herbert Smith Freehills (Madrid)
After three months of investigation, on 25 March 2008, the Spanish Competition Authorities decided to open a second phase investigation regarding the proposed takeover of Condor Fledgiest GmbH (“Condor”) by Air Berlin Plc (“Air Berlin”). Condor is a charter carrier based in Germany, which mainly (...)

The Belgian Competition Council lifts a must offer obligation previously imposed to a TV operator as a merger remedy (Telenet Bidco / Canal+)
Leuven University
Background information The decision at hand of the Belgian Competition Council, concerning the request for the revision of the conditions imposed on NV Telenet Bidco (now NV Telenet) as a result of its acquisition of (the Flemish pay TV activities of) NV Canal + in 2003, is one of the elements (...)

The Belgian Competition Council abolishes one of the conditions imposed in the context of a merger clearance in the markets of cable infrastructure and pay television channels, related to the obligation on the acquirer - a cable operator - to make available the premium content pay television channel on alternative infrastructures (Telenet Bidco / Canal+)
Freshfields Bruckhaus Deringer (Hong Kong)
The operation At the request of the acquirer, a cable operator, the Belgian Competition Council abolishes one of the conditions imposed in the context of a merger clearance in the markets of cable infrastructure and pay television channels. The Competition Council’s review concerned the (...)

The UK OFT clears without remedy an acquisition in the dairy business by (Dairy crest/East of England)
London Borough of Barking and Dagenham
On 28 March 2008, the Office of Fair Trading (“OFT”) announced its clearance decision in their completed acquisition by Diary Crest Group plc (“Dairy Crest”) of East of England Co-operative Society Limited (“EofE”) dairy business. Dairy Crest is the main trading subsidiary of Diary Crest Group plc (...)

The Brussels Court of Appeal annuls Belgian Competition Council’s decision lifting merger remedies imposed on a cinema group (Kinepolis)
Van Bael & Bellis (Brussels)
In a judgment of 18 March 2008, the Brussels Court of Appeal annulled the Belgian Competition Council’s decision of 16 April 2007 lifting the conditions it had imposed in 1997 on the merger between Belgian cinema groups Bert and Claeys, which created leading Belgian cinema group Kinepolis. In (...)

The Swiss Competition Commission cleared a merger in the food retailing sector subject to remedies, including the selling of a certain number of stores, the abolishing of exclusive supply agreements and a prohibition on merging with any other food retailing companies in Switzerland (Coop / Carrefour)
NERA (Berlin)
The operation On 17 March 2008, the Swiss Competition Commission (WEKO) cleared, in a second stage decision, the acquisition by Coop of Carrefour’s stores in Switzerland (12 existing and 2 planned hypermarkets), which in Switzerland were run by Distributis SA (jointly owned by Carrefour and (...)

The Finnish Market Court overrules the NCA’s conditional merger clearance in the electricity sector after completion of the transaction subject to conditions (Fortum Power-Heat / E.ON Finland Oy)
Frontia (Helsinki)
In June 2006, the FCA cleared Fortum Power and Heat Oy’s (“Fortum”) acquisition of E.ON Finland Oy (“E.ON”) subject to certain structural and behavioral conditions. The requirement of conditions by the FCA was materially based on the view of the FCA that the market for the production and wholesale (...)

The Russian NCA cleared a merger in the beer sector with behavioural remedies, including notification on future price increase (Baltic Beverages Holding / Carlsberg)
Clifford Chance (Moscow)
The operation The brewing company Carlsberg A/S (“Acquirer”) applied for clearance to acquire indirect control over the Russian brewing compay OAO "Pivovarennaya kompaniya Baltika" (“Target”) through acquisition of a 50% stake in Baltic Beverages Holding AG. The market The transaction related to (...)

The UK Competition Commission clears a merger in the market for terrestrial broadcast transmission services subject to extensive behavioural undertakings (Macquarie / National Grid Wireless)
NERA (London)
The operation On 11 March 2008, the Competition Commission cleared the merger between Macquarie UK Broadcast Ventures Limited (MUKBV) and National Grid Wireless Group (NGW), subject to an extensive set of behavioural remedies. The acquisition was completed on 3 April 2007. MUKBV is the owner (...)

The EU Commission clears an acquisition in the online advertising market (Google / DoubleClick)
JG Associates (Brussels)
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DG COMP (Brussels)
"Mergers: main developments between 1 January and 30 April 2008"* On 11 March the Commission decided to clear the proposed acquisition of the online advertising technology company DoubleClick by Google, both based in the US. Google operates an internet search engine that offers search (...)

The EU Commission clears a merger in the online advertising market applying for the first time the non horizontal merger guidelines (Google / DoubleClick)
DG COMP (Brussels)
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DG COMP (Brussels)
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European Commission (Brussels)
"Google/DoubleClick: The first test for the Commission’s nonhorizontal merger guidelines"* I. Introduction The Google/DoubleClickmerger generated considerable interest as it concerned the ubiquitous search engine that most Europeans use in their daily lives. From a competition policy (...)

The Swiss Competition Commission approved a merger in the agricultural products sector subject to remedies prohibiting the imposition of purchase or exclusivity terms on any undertaking active in the agricultural sector in Switzerland (Fenaco / Steffen-Ris)
NERA (Berlin)
The operation On 13 March 2008 the Swiss Competition Commission (WEKO), in a Stage 2 decision, cleared a merger between Fenaco and Steffen-Ris subject to remedies. Fenaco and companies controlled by Steffen-Ris are active in the markets for agricultural products. Fenaco is among the main (...)

The Turkish competition board, while accepting the failing company defense, clears a merger conditional to remedies in the daily political newspapers market (Vatan Newspaper / Dogan Group)
Erdem & Erdem (Istanbul)
The Turkish Competition Board (hereinafter referred to as the “CB”) in its decision numbered 08-23/237-75, dated March 19, 2008 granted conditional authorization for the acquisition of the sole control of Bagımsız Gazeteciler Yayıncılık A.S. and Kemer Yayıncılık ve Gazetecilik A.S. (hereinafter (...)

The EU Court of Justice rules on the application of Article 21 of the Merger Regulation (E.ON / Endesa)
European Commission (Brussels)
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DG COMP (Brussels)
"Application of Article 21 of the Merger Regulation in the E.ON/Endesa case"* On 21 February 2006, the German company E.ON publicly announced its intention to launch a bid for the entire share capital of the Spanish energy company Endesa. This bid was competing with a hostile bid made by Gas (...)

The European Commission conditionally clears merger in the buildings materials sector (Saint-Gobain/Maxit)
JG Associates (Brussels)
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DG COMP (Brussels)
"Mergers: main developments between 1 January and 30 April 2008"* In March the Commission gave its approval to the proposed acquisition of Maxit Holding AB of Sweden by Compagnie de Saint-Gobain of France. The approval was granted subject to the fulfilment of commitments to divest two Maxit (...)

The European Commission conditionally clears a merger in the consumable products used in the foundry industries (Cookson/Foseco)
JG Associates (Brussels)
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DG COMP (Brussels)
"Mergers: main developments between 1 January and 30 April 2008"* On 4 March the Commission gave its conditional approval to the proposed acquisition of Foseco by Cookson, both located in the UK. This approval was granted subject to the fulfilment of the parties’ undertaking to sell certain of (...)

The European Commission conditionally clears a merger between two UK foundry industry suppliers in parallel with US DOJ (Cookson, Foseco)
DG Economic and Financial Affairs (ECFIN) (Brussels)
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DG COMP (Brussels)
"Cookson/Foseco: merger of foundry industry suppliers reviewed in parallel by the EU and the US"* On 4 March the Commission approved the proposed acquisition of Foseco by Cookson. Both companies are based in the UK. The Commission’s decision was conditional on the divestiture of Foseco’s (...)

State Aid

The French Court of appeal of Douai rejects the claim of a tax payer contesting a tax adjustment and the reintegration of the sums perceived in the context of the "Borotra plan", on the ground that there was no uncertainty concerning the repayment of the unlawful aid (Blanchisserie industrielle du marais)
Sheppard, Mullin, Richter & Hampton LLP (Brussels)
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European Court of Justice (Luxembourg)
Factual Background The appellant seeks the annulment of the judgment of the administrative tribunal of Amiens dated 16 November 2006 in which the undertaking’s claim for repayment of additional taxes paid on societies and VAT was rejected. The appellant is active in the field of washing, (...)

The French Administrative Court of Nancy annulls a judgement having declared admissible the order for repayment of the tax on advertisement expenses constituting unlawful State aid (Fagnières Distribution; Pierrydis; Chamdis; Sodichamp; Eperdis)
Sheppard, Mullin, Richter & Hampton LLP (Brussels)
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European Court of Justice (Luxembourg)
Factual Background In this case, the Minister of Economy and Finances seeks the annulment of the administrative tribunal of first instance decision allowing the defendants restitution of the payment of taxes on advertising expenses paid for the year 2002. Between the judgment of the first (...)

The Belgian Constitutional Court dismiss as a State aid claim by economic operators seeking the annulment of a law imposing reusable packages more heavily than "one way" packages on the grounds that the Commission has not assessed the compatibility of the measure yet
Sheppard, Mullin, Richter & Hampton LLP (Brussels)
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European Court of Justice (Luxembourg)
Factual background The Fédération royale de l’industrie des Eaux et boissons rafraichissantes (the “Federation”) sought the annulment of a law of March 2007. The Federation alleged that the law constituted State aid, even if the measure pursues the legitimate objective of protection of (...)

The European Commission orders reimbursement of loans for R&D projects in the aeronautical sector in Italy (Legge aeronautica N. 808/1985)
DG COMP (Brussels)
"State aid: Commission orders reimbursement of loans for 17 R&D projects in the aeronautical sector in Italy"* The Commission took on 11 March 2008 a first conditional decision on aid to the aeronautical sector in Italy. The decision formally requests Italy, under EC Treaty state aid (...)

An Italian tax commission holds, pursuant to an EC Commission decision, that the tax exemption in favour of public utilities with a majority public capital holding constituted unlawful State aid and should be recovered with interest and with no discretionary power on the part of the local administration (Tax Commission of Modena)
EUJUS Law Firm (Rome)
The Tax Commission recalled the Commission Decision 2003/193/EC concerning alleged State aid granted by Italy in the form of tax exemptions and access to subsidised loans to various public utilities. With regard to the national legal background the Commission pointed out that in Italy (...)

The Italian Constitutional Court dismisses State aid claim on the grounds that the provisions of measures to combat tax evasion is not selective and so cannot be qualified as State aid (Regione Toscana, Emilia Romagna, Sicilia, Piemonte, Campania)
EUJUS Law Firm (Rome)
Factual background In five separate applications, Tuscany, Sicily, Piedmont, Campania and Emilia-Romagna Regions (“the Regions”) questioned the constitutionality of certain Articles of Law No. 203 of 30 September 2005, converted into law, with amendments, by Law No. 248 of 2 December 2005 (...)

Procedures

An overview of the proposed new Swedish Competition Act (Prop. 2007/08:135 Ny konkurrenslag)
Mercer Sverige (Stockholm)
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On 27 March 2008, the Swedish Government submitted a proposal for a new Swedish Competition Act (the «Proposed Competition Act») to the Swedish parliament (sw: riksdagen). The proposed act is suggested to come into effect on the 1 November 2008. The current Swedish Competition Act (SFS 1993:20, (...)

Swedish Courts disregard direct effect of the EC Utilities Directive and reject request for referral to the ECJ on its interpretation (Swebus/Storstockholms Lokaltrafik)
SNP Schlawien (Munich)
Introduction Apart from the ground breaking ruling by the European Court of Justice (ECJ) in the Altmark state aid case in 2004 , the European Commission and the European Courts have not delivered any significant competition, state aid or public procurement decisions in relation to the (...)

The highest Luxembourg administrative Court confirms the investigative powers of the competition authorities
Moyse Bleser (Luxembourg)
I. Background On 15 November 2007, the Luxembourg administrative tribunal (Tribunal administratif) (the “Tribunal”) rejected an action for annulment (hereinafter the “Action”) of a decision by the Competition Inspectorate (Inspection de la Concurrence) (the “Inspectorate”), by virtue of which the (...)

The French Supreme Court rules on the criminal rules governing the limitation period in an abuse of dominant position case (SNF / Cytec Industries)
Innovate Finance (London)
Few decisions are grounded on Article L. 420-6 of the French Commercial Code (hereinafter “FCC”). The latter organizes the sanctions applicable to the infraction constituted by the malevolent, personal and determining participation to a forbidden anticompetitive practice such as an agreement (...)

The President of European Court of First Instance dismisses request for interim measures by a low-cost airline (Aer Lingus)
Van Bael & Bellis (Brussels)
In an order of 18 March 2008, the President of the European Court of First Instance (CFI) dismissed a request for interim measures brought by Aer Lingus in its appeal against a European Commission decision finding that it had no power to require Ryanair to divest its minority stake in Aer (...)

The Swiss Federal Criminal Court rules on legal privilege (Panalpina)
International Committee of the Red Cross (Geneva)
The Swiss Federal Criminal Court (“SFCC”) recently issued a judgment confirming that, under Swiss law, professional secrecy and therefore legal privilege do not apply to communications between a company and its in-house counsel in the context of seizure of documents by the Swiss Competition (...)

A French Court rules that a commercial Court has no jurisdiction to withdraw the benefit of the exemption provided by a block exemption regulation (Turbo Europe/Peugeot-Renault-Citroën)
Vogel & Vogel (Paris)
The company Turbo Europe, better known under the name Automobil- Eclerc, has been in dispute with the French automobile manufacturers for a number of years. After attempting to place orders for new vehicles from Peugeot, Citroën and Renault and being turned down on the grounds of not belonging (...)

The UK OFT proposes payments to whistle-blowers in leniency proceedings
Kingsley Napley (London)
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GQ Employment Law
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Linklaters (London)
The United Kingdom Office of Fair Trading recently announced details of a ‘payment to informants’ scheme aimed at uncovering and taking action against cartel activity. The OFT is one of the first anti-trust regulators to introduce such reward payments. It remains to be seen whether other Member (...)

Regulatory

The European Regulators Group publishes a common position on best practice in remedies imposed by NRAs on undertakings holding a significant market power in the relevant market for wholesale leased lines
Fréget (Paris)
Background The European Regulators Group («ERG») has been established by Commission Decision 2002/627 of 29 July 2002 following the adoption of the 2002 regulatory framework for electronic communications. Its purpose is to provide an interface between the national regulatory authorities (NRAs) (...)

The French Competition Authority issues an opinion on the sector of premium telephone services (Association des Renseignements pour Tous)
French Competition Authority (Paris)
Press Release published on the official website of the French Competition Authority. Premium Telephone Services: The Conseil is in Favor of Creating a Wholesale Mobile Telephone Services Market and an Ex-Ante Regulation of This Market.* Following a request for opinion by the Association of (...)

The UK water regulator issues its first determination on a dispute on wholesale access prices (Aquavitae / Anglian Water)
University Aix-Marseille
I. Facts of the case After a period of negotiation, Anglian Water provided Aquavitae with wholesale access prices for supplies to four of Anglian Water’s existing customers. Aquavitae was not satisfied with the wholesale access prices being offered by Anglian Waterand asked Ofwat to make a (...)

The Czech telecom regulator is moving towards withdrawing restrictions imposed on the incumbent in one of the retail markets (Telefónica O2)
Allen & Overy (Prague)
In compliance with the European Commission Recommendation 2007/879/EC on relevant product markets (Recommendation 2007) that are susceptible to be regulated ex ante in accordance with Directive 2002/21/EC, the Czech Telecommunication Office (CTO) defined new relevant telecommunication markets. (...)

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