March 2018

Anticompetitive practices

The Turkish Competition Authority publishes revised Guidelines on vertical agreements
ELIG Gürkaynak Attorneys-at-Law (Istanbul)
The Turkish Competition Authority (“Authority”) completed its work in progress on revising the Guidelines on Vertical Agreements (“Guidelines”) that was issued based on the Block Exemption Communiqué on Vertical Agreements (“Communiqué No. 2002/2”). It took approximately 2 years for the Authority to (...)

The U.S. District Court for the Northern District of California sets student-athletes’ antitrust case for trial (National Collegiate Athletic Association)
Rutgers University (New Jersey)
On March 28, 2018, the U.S. District Court for the Northern District of California rejected an attempt by the NCAA and 11 conferences to dismiss claims brought by current and former student-athletes playing Division I Football Bowl Subdivision (FBS) football and men’s and women’s Division I (...)

The Italian Competition Authority clears a horizontal cooperation agreement in the telecommunication sector by a commitment decision (Flash Fiber)
Desogus Law Office (Cagliari)
In the Flash Fiber case the Italian Competition Authority (ICA) has closed by a commitment decision an Article 101 TFEU investigation into a horizontal cooperation agreement concerning the telecommunication sector. After the implementation of the commitments agreed with the parties, the ICA (...)

The Higher Regional Court of Hamburg, applying Coty, finds that a ban on selling products through online sales platforms can be justified if its objective is to preserve product image and ensure personal consultation with customers (Aloe2Go)
McDermott Will & Emery (Brussels)
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McDermott Will & Emery (Paris)
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McDermott Will & Emery (Brussels)
The Higher Regional Court of Hamburg had the opportunity to establish a position regarding potential restrictions of competition in selective distribution arising out of bans on selling products through eBay and similar platforms. The Higher Regional Court referred to recent case law of the (...)

The Belgian Supreme Court dismisses an appeal against an interim judgment of the Brussels Court of Appeal (Kone / Otis / Schindler / ThyssenKrupp)
Van Bael & Bellis (Brussels)
On 22 March 2018, the Belgian Supreme Court (the “Supreme Court”) dismissed an appeal against an interim judgment of the Brussels Court of Appeal (the “Court of Appeal”) on the damages claim introduced by the European Commission (the “Commission”). This claim arose following the Commission’s 2007 (...)

The EU Commission fines eight producers of capacitors for cartel (Elna / Hitachi Chemical / Holy Stone / Matsuo / NEC Tokin / Nichicon / Nippon Chemi-Con / Rubycon)
DG COMP (Brussels)
Antitrust: Commission fines eight producers of capacitors €254 million for participating in cartel* The European Commission has fined Elna, Hitachi Chemical, Holy Stone, Matsuo, NEC Tokin, Nichicon, Nippon Chemi-Con, Rubycon € 253 935 000. Together with the immunity applicant, Sanyo, they (...)

The EU Commission fines 8 Japanese producers of capacitors involved in a cartel for the supply of aluminium and tantalum electrolytic capacitors (Elna / Hitachi / Holy Stone / Matsuo / NEC Tokin / Nichicon / Nippon Chemi-Con / Ruycom / Sanyo)
Van Bael & Bellis (Brussels)
On 21 March 2018, the European Commission announced that it had adopted a decision fining eight Japanese producers of capacitors a total of € 253,935,000. The companies addressed by the decision, namely Elna, Hitachi, Holy Stone, Matsuo, NEC Tokin, Nichicon, Nippon Chemi-Con, Ruycom and Sanyo, (...)

The Australian Competition and Consumer Commission announces product safety priorities for 2018
Jones Day (Houston)
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Jones Day (Sydney)
The Australian Competition and Consumer Commission (ACCC) has announced product safety priorities for 2018. A key priority is for the Commission to work towards the introduction of a General Safety provision within the Australian Consumer Law (ACL). A recent review by the ACL found that it (...)

The French Competition Authority fines an undertaking for implementing anticompetitive agreements in the tobacconist security provision sector (Sécurité Vol Feu)
French Competition Authority (Paris)
Anticompetitive agreements in the tobacconist security provision sector in the Isère département* The Autorité de la concurrence fines the Sécurité Vol Feu company Following an investigation carried out by the General Directorate for Competition Policy, Consumer Affairs and Fraud Control (...)

The Spanish Competition Authority fines 9 bar associations for issuing a collective price recommendation regarding lawyers’ professional fees (Bankia)
Gomez Acebo & Pombo (Brussels)
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Gomez Acebo & Pombo (Brussels)
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Gomez Acebo & Pombo (Brussels)
The Spanish Competition Authority (“CNMC”) has fined 9 bar associations EUR 1.4 million for issuing a collective price recommendation regarding lawyers’ professional fees. The case was triggered by a complaint filed by Bankia as a consequence of the numerous claims filed by the bank’s (...)

The Spanish Competition Authority fines ten courier and parcel companies for participating in a customer-allocation cartel (Mensajeria y paqueteria empresarial)
Gomez Acebo & Pombo (Brussels)
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Gomez Acebo & Pombo (Brussels)
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Gomez Acebo & Pombo (Brussels)
The Spanish Competition Authority (“CNMC”) has fined ten courier and parcel companies EUR 68 million for participating in a customer-allocation cartel, namely, Correos Express, UPS, TNT, DHL, Touline, RedySer, FEDEX, ICS and MBE. The CNMC has found that some of the companies entered into oral (...)

The Vilnius Regional Administrative Court upholds fine for misleading advertising in the hotel sector (NT partneriai / Karolinos turas)
Université d’Ottawa - University of Ottawa
A hotel is a hotel and the Karolina Park Hotel in Vilnius, Lithuania is no exception. So the Vilnius Regional Administrative Court (Court) upheld a decision of the Competition Council of the Republic of Lithuania (Council) that fined the developer Karolinos turas and real estate company NT (...)

The Turkish Competition Board decides not to open an investigation against a company active in online sales of flowers, edible flowers and gifts following allegations of predatory pricing (Çiçek Sepeti)
ELIG Gürkaynak Attorneys-at-Law (Istanbul)
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ELIG Gürkaynak Attorneys-at-Law (Istanbul)
This case summary includes an analysis of the Turkish Competition Board’s (“Competition Board” or “Board”) Çiçek Sepeti decision (08.03.2018; 18-07/111-58). The Board reviewed the allegations put forward by Çiçek Satış A.Ş. (“Çiçek Satış”) against Çiçek Sepeti İnternet Hizmetleri A.Ş. (“Çiçek Sepeti”) (...)

The French Competition Authority closes its investigation into agricultural tractor manufacturers after ensuring that they change their commercial practices with dealers in order to strengthen competition and diversify supply (John Deere / AGCO)
French Competition Authority (Paris)
Sale of agricultural tractors* The Autorité closes the investigation against agricultural tractor manufacturers John Deere and AGCO (Massey Ferguson, Fendt, Laverda and Valtra). It has ensured that the manufacturers change their commercial practices in respect of dealers in order to (...)

The Indian Competition Authority reconsiders a price fixing case referred back from the appellate tribunal and reinstates fines against airline companies for fixing fuel surcharge rates for cargo transportation but makes the fines lower (Jet Airways / InterGlobe Aviation / Spice Jet)
Vaish Associates (New Delhi)
Competition Commission of India (“CCI”) imposes penalty on Jet Airways, IndiGo Airlines and Spicejet for fixing fuel surcharge rates* By way of an order dated March 7, 2018, the CCI has imposed a cumulative penalty of approx. INR 54 Crores on Jet Airways (India) Ltd (‘Jet Airways’), InterGlobe (...)

The Romanian Competition Authority implements a big data information system that will allow a quicker identification of cartel
Romanian Competition Council (Bucharest)
The Competition Council implements a big data informatics system through the project* “Optimizing the interaction with the business environment and the implementation of advanced data analysis and data exchange mechanisms by implementing an e-government information system and Big Data analysis (...)

The Higher Regional Court of Düsseldorf finds that sellers of high quality cosmetics cannot invoke "exhaustion of rights" under the EU Trademark Regulation if they have not presented the products in a way which avoids impairment of the brand’s reputation (Kanebo)
McDermott Will & Emery (Brussels)
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McDermott Will & Emery (Paris)
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McDermott Will & Emery (Brussels)
The Higher Regional Court of Düsseldorf decided that neither online nor offline sellers can invoke exhaustion of rights under Article 15(1) of the EU trademark regulation if they sell high-quality, prestigious cosmetic products without appropriate presentation to avoid impairment of reputation. (...)

The UK Competition Authority fines two suppliers of charcoal and coal for households for market sharing (CPL / Fuel Express)
British Competition Authority - CMA (London)
£3.4m fine for household coal and BBQ supplier cartel* Two of the biggest suppliers of charcoal and coal for households in the UK have agreed to pay a £3.4m fine for taking part in a market sharing cartel. CPL and Fuel Express are 2 of the main suppliers of bagged household fuels, including (...)

The Belgian Competition Authority and the French Competition Authority conduct inspections at distributors of cosmetic goods
Belgian Competition Authority (Brussels)
The Belgian Competition Authority confirms the inspections at distributors of cosmetic goods* The Investigation and Prosecution Service of the Belgian Competition Authority (BCA) confirms that the BCA and the “Autorité de la concurrence” (France) conducted inspections at the premises of (...)

Unilateral Practices

The U.S. Court of Appeals for the Third Circuit finds that the entry of ride-sharing firms into local taxi market increased rather than decreased competition (Philadelphia Taxi Association / Uber)
Economists Incorporated (Washington)
Third Circuit Rules in Uber’s Favor over Philadelphia Taxi Association* In a recent decision, the Third Circuit upheld a November 2016 district court decision to dismiss a complaint by the Philadelphia Taxi Association and 80 taxi companies, finding that there was no violation of antitrust (...)

The Latvian Competition Authority fines a waste management company for abuse of dominance (ZAAO)
Konkurences padome (Riga)
The CC imposes a fine on SIA “ZAAO” for abuse of market power* On 21 March, the Competition Council of Latvia (the CC), imposed a fine of EUR 36 665 on the waste management company SIA “ZAAO”, owned by several municipalities, for abuse of dominant position. The CC detected, that the waste manager (...)

The EU Commission opens a formal investigation into German grid operator for limiting cross border electricity capacity with Denmark (TenneT)
DG COMP (Brussels)
Antitrust: Commission opens investigation into German grid operator TenneT for limiting cross border electricity capacity with Denmark* The European Commission has opened a formal investigation to assess whether German grid operator TenneT’s limitation of capacity from Western Denmark into (...)

The Indian Competition Authority opens investigation into abuse of dominance and imposition of vertical restraints by a scooter manufacturer (Honda Motorcycle and Scooter)
Vaish Associates (New Delhi)
CCI directs investigation against Honda Motorcycle and Scooter Private Ltd (Honda) for imposition of vertical restraints on its dealers and for abuse of dominant position* The CCI by its order dated March 14, 2018 has directed the Director General (“DG”) to investigate allegations of imposition (...)

The Polish Supreme Court examines a case of non-compliance with a decision of the Competition Authority finding abuse of a dominant position (PKP Cargo)
Małgorzaty Kozak (Warsaw)
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Affre i Wspólnicy (Warsaw)
In the judgement of 7 March 2018 (III SK 6/17), the Polish Supreme Court (“SC”) examined the case of non-compliance with the decision of the President of the Office of Competition and Consumer Protection (“NCA”) on the abuse of a dominant position by PKP Cargo, Poland’s largest railway freight (...)

The French Competition Authority issues an opinion concluding its sector-specific investigation into online advertising
French Competition Authority (Paris)
Sector-specific investigation into online advertising* The Autorité de la concurrence has made public its opinion in which it analyses a very complex market characterised by a fragile competitive equilibrium. Given the concerns of stakeholders in the sector, the General Rapporteur announced (...)

The UK Competition Appeal Tribunal grants an application by the claimant in a damages action in the automobile industry for disclosure of licensing arrangements made by the defendant (Peugeot / NSK)
Latham & Watkins (London)
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Latham & Watkins (London)
CAT Rules on Disclosure in Peugeot S.A. and others v NSK Ltd and others* The CAT’s specific disclosure ruling addresses the use of licensing to support anticompetitive behaviour. On 2 March 2018, the Chairman of the UK Competition Appeals Tribunal (CAT) granted an application for further (...)

Mergers

The Belgian Competition Authority clears the acquisition of a Belgian football club by an investment company (Royal Sporting Club Anderlecht / Alychlo)
Belgian Competition Authority (Brussels)
The Belgian Competition Authority approves the acquisition of Royal Sporting Club Anderlecht by Alychlo* The Investigation and Prosecution Service of the Belgian Competition Authority (BCA) has approved on 28 March 2018 the acquisition of Royal Sporting Club Anderlecht by Alychlo. The (...)

The EU Commission considers potential harm to innovation as part of its merger assessments, particularly in R&D driven sectors such as pharmaceuticals and technology (Bayer / Monsanto)
Shearman & Sterling (Brussels)
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Shearman & Sterling (Brussels)
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Shearman & Sterling (London)
The European Commission has routinely considered potential harm to innovation as part of its merger assessments, particularly in R&D driven sectors such as pharmaceuticals and technology. In recent years, however, the Commission’s traditional innovation concerns have developed into broader, (...)

The EU Commission clears a merger, subject to remedies, in the seeds, pesticides and digital agriculture sector (Bayer / Monsanto)
DG COMP (Brussels)
Mergers: Commission clears Bayer’s acquisition of Monsanto, subject to conditions* The European Commission has approved under the EU Merger Regulation the acquisition of Monsanto by Bayer. The merger is conditional on the divestiture of an extensive remedy package, which addresses the parties’ (...)

The German Competition Authority clears a merger subject to remedies in the rail sector (CIT Rail / VTG Rail Assets)
German Competition Authority (Bonn)
Rail wagon leasing companies may merge subject to condition precedent* The Bundeskartellamt has cleared the acquisition of CIT Rail Holdings (Europe) S.A.S. by VTG Rail Assets GmbH subject to a condition precedent. The companies may only implement the merger once they have sold a substantial (...)

The US FTC publishes a blog post reminding merging parties to avoid creating antitrust liability through the exchange of competitively sensitive information during merger negotiations
Bennett Jones (Washington)
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Jones Day (Washington DC)
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Jones Day (Washington DC)
In Short The Situation: The Federal Trade Commission ("FTC") recently published a blog post reminding merging parties to avoid creating antitrust liability through the exchange of competitively sensitive information during merger negotiations and due diligence. The Risk: Information-sharing (...)

The U.S. Senate approves the Economic Growth, Regulatory Relief and Consumer Protection Act that would repeal or modify certain provisions of the Dodd-Frank Act
Skadden, Arps, Slate, Meagher & Flom (New York)
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Skadden, Arps, Slate, Meagher & Flom (New York)
On March 14, 2018, the U.S. Senate approved the Economic Growth, Regulatory Relief and Consumer Protection Act, a bipartisan bill that would repeal or modify certain provisions of the Dodd-Frank Act and eliminate or ease a number of regulatory burdens on superregional, regional and large (...)

The Indian Competition Authority unconditionally approves acquisition of a corporate debtor for the first time under the new Insolvency and Bankruptcy Code (Binani Cement / Rajputana Properties)
Vaish Associates (New Delhi)
CCI approves initial transactions notified under the Insolvency and Bankruptcy Code, 2016* The CCI vide its order on March 7, 2018, unconditionally approved the proposed acquisition of Binani Cement Ltd by Rajputana Properties, subsidiary of Dalmia Bharat Cement Ltd. This is the first (...)

State Aid

The EU General Court overturns the Commission’s decision that exclusive use of a port by a shipping company was not State aid, after finding the Commission failed to open a formal investigation and establish that the port owner acted as a private operator (Naviera Armas)
College of Europe (Bruges)
Article published on StateAidHub: http://stateaidhub.eu, republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

The EU Court of Justice holds that it’s not acceptable for the assets to be transferred to a bidder that had initially participated in the process as a member of a consortium when analyzing a measure of State aid for restructuring and recapitalisation involving a bidding process (SNCF Mobilités)
University of Bristol - Law School
Do EU procurement & State aid rules conflict on possibility for consortium members to ’go it alone’? (C-127/16 P)* In its Judgment of 7 March 2018 in SNCF Mobilités v Commission, C-127/16 P, EU:C:2018:165, in the context of the analysis of a measure of State aid for restructuring and (...)

The EU Court of Justice sets aside the General Court’s annulment of a Commission decision concerning state aid granted to a Danish bank (FIH Holding)
McDermott Will & Emery (Brussels)
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McDermott Will & Emery (Paris)
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McDermott Will & Emery (Brussels)
When considering whether a measure constitutes State aid for the purposes of Article 107(1) TFEU and applying the well-established private operator principle, one should take into account both the private creditor test and that of the private investor depending on the nature of the transaction. (...)

The EU Court of Justice annuls a judgment of the General Court, finding that previously granted State aid must be disregarded when applying the private investor principle (FIH Holding)
College of Europe (Bruges)
Article published on StateAidHub: http://stateaidhub.eu, republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

Procedures

The China’s Antitrust Regulator Ramps Up Scrutiny, Enforcement of Behavioral Remedies
Skadden, Arps, Slate, Meagher & Flom (Hong Kong)
In March 2018, China’s State Council announced the establishment of a unified market regulator, the State Administration for Market Regulation (SAMR), which now is responsible for all antitrust enforcement in China. Previously, antitrust enforcement in China was administered by three separate (...)

The High Court of Delhi refuses to interfere with prima facie order passed by Indian Competition Authority post submission of Director General’s Investigation Report (Cadila Healthcare)
Vaish Associates (New Delhi)
Delhi High Court refuses to interfere with prima facie order passed by CCI post submission of DG Investigation Report* The High Court of Delhi in a recent judgement dated March 9, 2018 has refused to interfere in a pending inquiry after the submission of the Director General’s (DG) (...)

The High Court of England and Wales provides guidance on the applicable competition law in time (Deutsche Bahn / Mastercard)
Blackstone Chambers (London)
Applicable law in competition infringements: Deutsche* The recent judgment of Barling J in Deutsche Bahn AG v MasterCard offers important guidance on determining applicable law in competition actions. Practitioners dealing with competition infringements which stretch back prior to the entry (...)

Regulatory

The Finnish Competition Authority issues its report on health service marketing
Finnish Competition and Consumer Authority (Helsinki)
FCCA report: Health service marketing promotes competition and customers’ freedom of choice* The FCCA has been studying how health service marketing is currently regulated and what kinds of challenges the health and social services reform is setting for health service marketing. Health service (...)

Public sector

The Moldovan Competition Authority prosecutes two companies for bid rigging in public procurement of repair works by the local administration (Vanro-Com / Sardis Exim)
Faculty of Law - University of Macau
On 22 March 2018, the Competition Council of the Republic of Moldova (CC) prosecuted Vanro-Com SRL and Sardis Exim SRL for concluding an anti-competitive agreement, aimed at distorting and preventing competition by participating with rigged bids at the public tender, organized by the Chişinău (...)

The EU Court of Justice holds that a member State must establish that national secure interest protection could not be reached with the EU public procurement rules to obtain a derogation (Austrian public contracts of printing secure documents)
University of Bristol - Law School
WHY CALL IT ESSENTIAL NATIONAL INTEREST WHEN YOU MEAN CONTROL? THOUGHTS ON THE CONVERGING EXCEPTIONS TO THE EU PROCUREMENT RULES A PROPOS THE AUSTRIAN PASSPORTS CASE (C-187/16)* In its Judgment of 20 March 2018 in Commission v Austria (Imprimerie d’État), C-187/16, EU:C:2018:194, the Court of (...)

The Competition Commission of India decides to examine the algorithm used in determining airline ticket prices in order to determine whether the airline companies have engaged in price-fixing practices (Jet Airways / InterGlobe Aviation)
National University of Study and Research in Law (Ranchi)
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National University of Study and Research in Law (Ranchi)
The Competition Commission of India (“CCI”), anti-trust watchdog of India has lately sprung up in action by tightening the noose around the anti-competitive practices in the aviation sector. Recently in an incident concerning revising and fixing fuel surcharge (FSC) rates by a few airline (...)

The EU Court of Justice holds that when public entity makes no selection between the admissible tenderers it does not constitute public contract (Tirkkonen)
University of Bristol - Law School
THE END OF PROCUREMENT AS WE KNEW IT? CJEU CONSOLIDATES FALK PHARMA APPROACH TO DEFINITION OF PROCUREMENT IN TIRKKONEN (C-9/17)* In its Judgment of 1 March 2018 in Tirkkonen, C-9/17, EU:C:2018:142, the Court of Justice of the European Union (CJEU) had to assess whether a scheme with the (...)

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