May 2009

Anticompetitive practices

The Swedish Market Court ends asphalt cartel case by increasing fines up to € 46 M, reaching highest ever fine in a cartel case (NCC)
Tele2
The Swedish Market Court, the court of last instance in cases brought under the Swedish Competition Act (the “Act”), put an end to the asphalt cartel case, inter alia,increasing the fines for one of the participants, NCC. Collectively, the fines are the highest ever imposed in a Swedish cartel (...)

The Belgian Competition Council considers an agreement between two transport companies to be compatible with national law... after three years of proceedings (De Boeck and Nidco, "Bruxelles city tour")
Liège University - IEJE
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Misson (Liège)
The Belgian Competition Council considers an agreement between two transport companies to be compatible with article 2 of the Belgian Competition Law I. The Parties “De Boeck Invest NV” is a holding company. It holds 99,56% of “Autocars Henri De Boeck en reizen André Leloup NV” (“De Boeck”), a (...)

A French Court renders a new decision relative to the selection of distributors of new vehicles in a qualitative and quantitative selective distribution system (Sodac / BMW France)
Vogel & Vogel (Paris)
Legal disputes often arise relative to the selection of distributors of new vehicles in distribution systems that are both qualitative and quantitative in the various Member States of the EU. An analysis of the decisions rendered reflects the significant difficulties, after entry into force of (...)

The Paris Court of Appeal holds that the ban on resale outside the network may apply to registered cars and discrimination is no longer prohibited per se (General Motors France, Bigorre Services Automobiles and Navarre Services Automobiles)
Vogel & Vogel (Paris)
On 27 May 2009, the Paris Court of Appeal rendered a judgment that is of great interest with regard to two competition law issues. In respect of sales outside the network by distributors :- under Block Exemption Regulation n° 1400/2002 on the application of Article 81(3) of the Treaty to (...)

The Swiss Competition Commission opens the door to a more economic approach for vertical price fixing (Sécateurs et cisailles)
Lenz & Staehelin (Geneva)
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Sigma Legal (Geneva)
Under Swiss law, agreements containing vertical price fixing are presumed to suppress effective competition and, consequently, to be illegal (Art. 5(4) Cartel Act, hereafter “CartA”, and Art. 10(1) Communication on vertical agreements, hereafter “ComVert”). The presumption cannot be rebutted if the (...)

The Swiss Competition Commission sanctions two companies, a manufacturer of garden shears and hedge clippers, and one distributor for entering into an agreement on fixed retail prices (Felco / Landi)
Agon Partners (Zurich)
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Zurich District’s Prosecutor
Description of the impugned case Felco, a manufacture of garden shears and hedge clippers (with 75-85 % market share among professional users), and Landi, a distributor, entered into an agreement on directly fixed retail price. In this atypical case, the agreement enabled Landi to sell the (...)

The Hungarian Competition Authority terminates its investigation on recommended minimum prices set by a professional association (Hungarian Chamber of Doctors)
Van Bael & Bellis (Brussels)
Due to regulatory changes, since 1 April 2007, the Hungarian Chamber of Doctors (the Chamber) is no longer entitled to publish recommended minimum prices. In an order, dated 25 May 2009, the Hungarian Competition Authority (GVH) established that some recommended prices continued to be available (...)

The Cyprus Competition Committee holds that unilateral termination of relationships leaving the other party with no equal alternative business supplier amounts to abusive exploitation of a dependent relationship (Andros Kiosk / Fereos)
Neocleous (Nicosia)
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Neocleous (Nicosia)
The Competition Committee unanimously concluded that Fereos one sidedly terminated its relationship with Andros Kios arbitrarily and unduly, which made it impossible for Andros Kios to find an equal alternative business supplier, and created irreparable damage as Andros Kios relied on the (...)

The Belgian Supreme Court makes clear that a judge cannot invoke Art. 81.3 EC on its own motion if it was not invoked by one of the parties to the case (Brouwerij Haacht)
VMMa (Gent)
Facts The case concerns an appeal to the Belgian Supreme Court against a decision of the Brussels Court of Appeal. It is important to note that the Belgian Supreme Court does not assess the facts of a case, it can only decide on the legality of a judgment. The case concerns an exclusive (...)

The Latvian Competition Council establishes an agreement on fixing minimum resale prices engaged by a computer wholesaler (Mobilux)
Konkurences padome (Riga)
Computer Wholesaler Fined for Minimal Resale Price Fixing* On 14 May 2009 Competition Council of Latvia (CC) adopted a decision on establishing a prohibited agreement in activities of MOBILUX Ltd. by fixing minimal resale prices for the M-LUX computers it produces. CC imposed a fine on Mobilux (...)

The French Competition Authority issues five new favorable opinions on derogating agreements regarding the new rules for payment timeframes in the stationery, canned foods, tires, pets and two-wheeled vehicles industries
French Competition Authority (Paris)
Press Release published on the official website of the French Competition Authority. Payment timeframes: The Autorité de la concurrence has issued five new favorable opinions regarding derogating agreements in the industries of stationery, canned foods, tires, pets and two-wheeled vehicles.* (...)

The US DOJ announces its economic recovery initiative designed to identify any fraud or collusive activity related to the federal government’s stimulus spending under the American Recovery and Reinvestment Act of 2009
White & Case (New York)
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White & Case (New York)
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White & Case (New York)
On April 13, 2009, the US Department of Justice’s Antitrust Division ("DOJ") announced its Economic Recovery Initiative ("Recovery Initiative"), which is designed to identify any fraud or collusive activity related to the federal government’s stimulus spending under the American Recovery and (...)

The Milan Court of First Instance holds that a claim exclusively aimed at obtaining from a national Court a judgment contrary to a Commission’s assessment, to avoid private enforcement, is inadmissible (ENI)
Simmons & Simmons (Milano)
On 11 May 2009, the Court of First Instance (Tribunale) in Milan handed down judgment in a civil action lodged by the Italian company ENI relating to the synthetic rubber cartel for which it was fined by the European Commission in November 2006. In the context of cross border private damages (...)

The Serbian Competition Authority prosecutes a sport federation for mandating its athletes to use a single brand of protective wear (Karate Federation of Serbia and BMA Trading)
Faculty of Law - University of Macau
Summary Serbian Competition Authority found anticompetitive the agreement between the Karate Federation of Serbia (KFS) and an exclusive importer of Adidas protective wear that mandated KFS athletes to use exclusively Adidas wear during the KFS-organized competitions. The agreement was (...)

The German Competition Authority imposes fines on pharmaceutical companies for price fixing (Grünenthal and Infectopharm)
Van Bael & Bellis (Brussels)
According to a press release of 7 May 2009, the German Federal Cartel Office (FCO) refrained from imposing a fine on two pharmaceutical companies, Grünenthal GmbH and Infectopharm GmbH, which had illegally agreed on prices for colistin-based antibiotics. Following Grünenthal GmbH’s leniency (...)

The European Court of First Instance dismisses appeals in industrial tubes cartel case (KM Europa Metal)
Van Bael & Bellis (Brussels)
On 6 May 2009, the Court of First Instance (CFI) handed down its judgments in appeals brought by three of the companies fined by the Commission in 2003 for participating in a cartel on the market for industrial copper tubes. In its December 2003 decision, the Commission imposed fines totalling (...)

A US Court of Appeals affirms a grant of summary judgment for defendants in an antitrust action on an allegation of conspiration to allocate customers and fix prices within the tools business (Nitro Distributing / Alticor)
Sheppard Mullin (Los Angeles)
Eighth Circuit Affirms Dismissal of Antitrust Claims Against Amway* The Court of Appeals for the Eighth Circuit has affirmed a grant of summary judgment for defendants in an antitrust action which, according to the court, mischaracterized a vertical course of conduct as a “horizontal (...)

The Cyprus Commission for the Protection of Competition decides that because State Educational Institutes do not fall within the definition of an “undertaking”, it lacks the competence to examine a complaint against it (Union of private institutes)
Factual Background A complaint was lodged on 05/10/2005 by the Union of Private Institutes, before the Cyprus Commission for the Protection of Competition against the State Educational Institutes concerning antitrust practices. More specifically the Union of Private Institutes complained that (...)

Unilateral Practices

The South African Competition Appeal Court overturns an excessive pricing decision by the Competition Tribunal (Mittal Steel)
RBB Economics (Brussels)
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RBB Economics (Brussels)
BACKGROUND In 2007, the South African Competition Tribunal (CT) found Mittal Steel guilty of charging excessive prices for steel products on the South African market. The decision contested the pricing practices carried out by Mittal. Namely: (i) prices in the domestic South African market are (...)

The Belgian Competition Council establishes abuse of dominant position in termination rates case (Base / Belgacom)
KBC Bank & Verzekering (Brussels)
Background and competition issues When several telephony operators are active on a telecommunications market, it is important for customers of any given operator to be able to call any other phone user, regardless of whether (s)he is a customer of the same operator. This requires every (...)

The Belgian Competition Council finds the historical telecom operator guilty of margin squeeze and imposes a fine of €66,3 million (Base / Belgacom)
Liège University - IEJE
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Liedekerke Wolters Waelbroeck Kirkpatrick (Brussels)
The Belgian competition Council finds Belgacom guilty of margin squeeze and imposes a fine of €66,3 million. I. The Parties Belgacom S.A. is the historical operator on the Belgian telecom market and provides mobile telecom services through its 100% subsidiary Belgacom Mobile Belgium (“BMB” - (...)

The Belgian Competition Council fines a mobile operator due to price squeeze practices (Base /Belgacom)
Altius (Brussels)
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Altius (Brussels)
In the telecommunications sector, recent years have seen an important increase of cases concerning abuse of dominant position brought before either the European Commission or the national competition authorities. In this respect, one of the recurrent issues in these cases is the so-called (...)

A Danish Court awards € 10 M damages for loss suffered as a result of an abuse of a dominant position in the postal sevices sector (Danish Postal Service)
Danish Competition and Consumer Authority (Copenhagen)
The Danish Eastern High Court awards damages in the amount On 20 May 2009, the Danish Eastern High Court awarded damages in the amount of DKK 75 million (EUR 10 million) to a Danish distributor of unaddressed mail for loss suffered as a result of the Danish Postal Service’s abuse of a dominant (...)

The Cypriot Commission for the Protection of Competition holds two pharmaceutical companies as having abused of their dominant position in the vaccines market throught quantitative reductions and free distribution of vaccines (Panayotou / Wyeth Hellas / Phadisco)
Antoniou McCollum (Nicosia)
The Cyprus Commission for the Protection of Competition (“CPC”) found the Wyeth Hellas A.E.B.E. Pharmaceutical Products (Cyprus branch) (“Wyeth”) and Phadisco Ltd (“Phadisco”) to have abused its dominant position in the market of pneumonococcus vaccines, in violation of article 6(1)(d) of the (...)

The Spanish Competition Authority fines a telecommunication operator for concluding contracts of excessive duration and offering abusive bundled rebates (Abertis)
Van Bael & Bellis (Brussels)
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Practising Law Institute (New York)
On 19 May 2009, the Spanish Competition Authority adopted a decision against Abertis for concluding contracts of excessive duration and offering bundled rebates contrary to Article 82 EC and the Spanish equivalent provision. Abertis is a group of undertakings active in the management of various (...)

The Czech Chamber of Deputies votes a bill on abuse of economic dependence (Bill on significant market power and the abuse thereof)
Czech Ministry of Justice (Prague)
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Czech Ministry of Justice (Prague)
On 15 May 2009, the Czech Chamber of Deputies voted in favour of a bill “on significant market power and the abuse thereof”. According to the voted text, “where, due to the situation on the market, a supplier becomes dependent on the buyer with respect to the possibility to deliver its goods to (...)

The Paris Court of appeal reverses a decision of the Commercial Court which ordered the telephone incumbent to suspend the conditioned sale of its football dedicated channel to the subscription to its triple play offer (Orange Foot-France Télécom)
Freshfields Bruckhaus Deringer (Paris)
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Lni avocats (Paris)
On 14 May 2009, the Paris Court of appeal reversed a decision of the Paris Commercial Court dated 23 February which ordered France Telecom to suspend the conditioned sale of its football dedicated channel “Orange Foot” to the subscription to its triple play offer. The Paris Court of Appeal held (...)

The EU Commission publishes a non-confidential version of its decision on abuse of dominance in the x86 CPU market (Intel)
Ashurst (Milan)
Commission publishes non-confidential version of its decision on Intel’s abuse of dominance in the x86 CPU market* On 21 September 2009, the Commission published a non-confidential version of its Intel decision, adopted on 13 May 2009, together with a summary of the key elements of the (...)

The EU Commission fines a US semiconductor chip manufacturer for abuse of a dominant position (Intel)
DG COMP (Brussels)
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DG COMP (Brussels)
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DG COMP (Brussels)
"Commission finds abuse of dominance in the Intel case"* I. Introduction On 13 May 2009, the European Commission concluded its Intel investigation by way of a formal Decision. The Commission found that Intel had abused its dominant position in x86 Central Processing Units (CPUs) by engaging (...)

The EU Commission fines a leading computer manufacturer for abuse of its dominant position (Intel)
Van Bael & Bellis (Brussels)
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Practising Law Institute (New York)
On 21 September 2009, the Commission published the non-confidential version of the Intel decision of 13 May 2009, and a summary of the decision was also published in the Official Journal of 22 September 2009. The materials confirm that the Commission has challenged two specific practices: (i) (...)

The US DOJ formally withdraws its report on abuse of dominance (Single-Firm Conduct under S. 2 of the Sherman Act)
White & Case (Washington)
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White & Case (New York)
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International Air Transport Association (IATA) (Washington DC)
Background On May 11, 2009, the Antitrust Division of the Department of Justice (“DOJ”) formally changed its position on the agency’s role in the enforcement of the antitrust laws against monopolists. In a speech by new Assistant Attorney General Christine A. Varney and a press release issued (...)

An Italian Court annulls the Italian Competition Authority’s commitment decision in the “motorway assistance services” case for breach of the proportionality principle (Motorway assistance services)
Bonelli Erede (Rome)
By its judgment delivered on 8 May 2009, the Italian First Instance Administrative Court (“Tar Lazio”) annulled the Italian Competition Authority’s (“ICA”) commitment decision in the “Motorway assistance services” case, since the measures made binding by the ICA were considered disproportionate and (...)

The German Federal Court of Justice rules on antitrust defense to infringement of standards-related patents on the market for writeable optical media (Orange Book)
Ashurst (Milan)
German Federal Court of Justice rules on antitrust defense to infringement of standards-related patents* On 6 May 2009 the German Federal Court of Justice handed down a landmark judgment (KZR 39/06 – Orange-Book-Standard) concerning the use of the competition law defense regarding compulsory (...)

The German Federal Court of Justice clarifies that defendants can invoke the abuse of dominance against an injunction claim of a patentee if the latter has refused a licence in an abusive manner (Orange-book-standard)
University of East Anglia
Summary In its decision of 6 May 2009 the German Federal Court of Justice held that a defendant can invoke the abuse of dominance against an injunction claim of the patentee if the latter refused a licence in an abusive manner. The patentee acts in an abusive manner if he refuses an (...)

The German Federal Court of Justice holds that defendants in patent infringement litigation can raise a “compulsory licence defence” subject to strict conditions (Orange-Book-Standard)
Blomstein (Berlin)
Background The Koninklijke Philips Electronics N.V. (“Philips”) is the holder of a patent which is essential for the production of recordable and rewritable compact discs (CD-R and CD-RW discs). Use of the patent cannot be avoided in the production of CD-R or CD-RW discs and Philips has granted (...)

The German Federal Civil Court of Justice rules on the conditions of compulsory licence defence (Philipps)
Van Bael & Bellis (Brussels)
According to a press release, on 6 May 2009 the German Federal Civil Court of Justice (the German Court of Justice) handed down a judgment setting out the conditions of a so-called compulsory licence defence. Under such a defence, a patent user facing an infringement suit from the patent holder (...)

The Latvian Supreme Court uppholds the Competition Council’s decision on abuse of dominance in the telecommunication sector (Lattelecom)
Konkurences padome (Riga)
Supreme Court Upholds the Decision on Abuse of Dominant Position by Telecommunication Company* With the decision of 5 May 2009 the Senator Collegium of the Department of Administrative Cases of the Senate of the Supreme Court has dismissed legal proceedings concerning the 17 July 2002 decision (...)

The US Court of Appeals for the sixth circuit affirms the decision of the lower court allowing a summary judgment on all claims including the exclusion of competition from the market for gasoline (Partner / ExxonMobil Oil)
Sheppard Mullin (Los Angeles)
PMPA Franchise Agreement Disavowing Plaintiff’s Claim to an Exclusive Market and Geographic Territory Trumps Alleged Oral Commitment* Partner v. ExxonMobil Oil Corp., 08-1590 (6th Cir. May 4, 2009) In 2000, plaintiff Partner & Partner, Inc. entered into a lease/franchise agreement with (...)

Mergers

An Italian administrative court asks the Constitutional Court whether a legislative measure that conditionally cleared a merger outside ordinary merger control is in compliance with the Italian Constitution (Federconsumatori)
University of Palermo
All the undertakings are equal. It happens in Italy, however, that some undertakings are more equal than others and the State allows them to realise a concentration without subjecting them to ordinary merger control rules. The Italian Constitutional Court (Constitutional Court), in a (...)

The U.S. FTC files a complaint to stop a proposed merger between two leading producers of plasma-derivative protein therapies (CSL / Talecris)
Jones Day (Washington DC)
Just two weeks after the FTC filed a complaint seeking an injunction to stop the proposed $3.1 billion acquisition by Australia-based CSL Limited of Talecris Biotherapeutics Holding Corporation, the parties have withdrawn their plans for a merger. The announcement, made on June 8, 2009, came (...)

The Italian Competition Authority opens a compliance procedure on the implementation of remedies regarding a merger in the banking sector (BancaIntesa / SanPaolo IMI)
Desogus Law Office (Cagliari)
By a decision taken on 14 May 2009, the Italian Competition Authority or ICA has opened an investigation into whether the parties to the BancaIntesa/San Paolo IMI concentration fulfilled the remedies imposed with the conditional authorization of the transaction . The ICA conditional (...)

The UK OFT accepts the application of the "Failing Firm Defence" in retail stores acquisition (HMV, Zavvi)
Linklaters (Hong Kong)
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Cadwalader Wickersham & Taft (Brussels)
On 14 May 2009, the Office of Fair Trading (OFT), the UK’s competition agency, allowed an application of the « failing firm defence » under UK competition law, thereby clearing the HMV/Zavvi retail store acquisitions to proceed. The UK is one of the few jurisdictions to have explicitly recognised (...)

The UK OFT refers two mergers in the market for local bus services to the Competition Commission (Stagecoach Group of Eastbourne Buses - Cavendish Motor Services)
Desogus Law Office (Cagliari)
The Office of Fair Trading (OFT) has recently referred to the Competition Commission (CC) two mergers between local bus operators . In October and December 2008, Stagecoach acquired the entire share capital of two Eastbourne local bus operators, first Eastbourne Buses and Cavendish Motor (...)

The Competition Authority of Bosnia & Herzegovina rejects an undertaking’s request for relief from payment of the fine for failure to notify a merger (Integral In?enjering - Gradevinsko preduzeće Jedinstvo)
Faculty of Law - University of Macau
In March 2008, on the basis of the publicly available information, the Competition Authority of Bosnia & Herzegovina (Konkurencijsko vijeće BiH) (KV) learned about the merger of two construction companies active in the federal entity Republic of Srpska : Integral Inženjering a.d. (Integral (...)

The German Competition Authority unconditionally clears an acquisition in the energy sector (RWE Energy / Exxon Mobile)
Van Bael & Bellis (Brussels)
On 8 May 2009, the FCO unconditionally cleared the acquisition by RWE Energy of all district heating activities of Exxon Mobile in Germany, among other reasons, because the local district heating markets had a turnover below the de minimis market threshold of euros 15 million. The FCO left open (...)

State Aid

A Swedish Administrative Court finds that a guarantee undertaken by a municipality in favour of a private company that has constructed a building to be leased by the municipality for kindergarten activities does not constitute illegal aid under national law, nor is competition distorted on the relevant market under EC State aid or competition rules (Rydfeldt)
Mercer Sverige (Stockholm)
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General Court of the European Union (Luxembourg)
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Öberg & Associés
Factual Background In 2008 the Municipality Board in Kungsbacka decided to undertake a guarantee of 17 million SEK in favour of a private undertaking. The private undertaking had constructed a building to be leased by the municipality for kindergarten activities. A private citizen, resident in (...)

The European Commission conditionally approves State aid to German bank (WestLB)
DG COMP (Brussels)
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European Commission - DG MOVE
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DG COMP (Brussels)
"The WestLB restructuring decision"* I. Introduction On 12 May 2009, the European Commission took a final decision on State aid given to German bank WestLB AG, by approving a €5 billion risk shield. This conditional decision followed an in-depth investigation opened in October 2008, and was (...)

The European Commission approves recapitalisation of German bank (Commerzbank)
German Federal Financial Supervisory Authority (Bonn)
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DG COMP (Brussels)
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DG COMP (Brussels)
"The Commerzbank recapitalisation decision: providing legal certainty in times of crisis and guidance for future restructuring"* On 7 May 2009 the Commission approved the € 18 billion recapitalisation of Commerzbank AG (“Commerzbank”). It was one of the first decisions the Commission has taken on (...)

Procedures

The English Court of Appeal overturns Competition Appeal Tribunal in a pro-defendant judgment on follow-on damages actions (BCL / BASF)
White & Case (London)
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Herbert Smith Freehills
On 22 May 2009, the Court of Appeal handed down its judgment in BCL v BASF , ruling that the Competition Appeal Tribunal (“CAT”), had erred in allowing what was, in the opinion of the Court of Appeal, a time-barred damages claim to proceed. The judgment will provide welcome legal certainty to (...)

The UK Court of Appeal clarifies the application of the time limits relating to damages actions based on competition law violation (BCL Old Co)
Van Bael & Bellis (Brussels)
In a judgment given on 22 May 2009, the Court of Appeal clarified the application of the time limits relating to damages actions brought under section 47A of the Competition Act. Section 47A allows parties that have suffered damages, as a result of a competition law violation to claim (...)

The Luxembourg Administrative Tribunal annuls decisions imposing interim measures and fines in the telecommunications sector (Entreprise des Postes et Télécommunications)
Moyse Bleser (Luxembourg)
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Allen & Overy (Luxembourg)
Introduction In a judgment dated 20 May 2009 (the Judgment), the Luxembourg administrative tribunal (the Tribunal) annulled two decisions of the Competition Council (the Council) and the President of the Council (the President) concerning interim measures and fines imposed on the Entreprise (...)

The English High Court rejects an appeal brought by a former CEO against an order to extradite him to the United States (Ian Norris)
Van Bael & Bellis (Brussels)
On 15 May 2009, the English High Court rejected an appeal brought by Ian Norris, the former chief executive of Morgan Crucible plc against an order to extradite him to the United States to face charges of obstructing the course of an antitrust investigation conducted by the US Department of (...)

The EU General Court clarifies Commission’s duty of care and third parties’ right to be heard in merger control proceedings (NVV)
Van Bael & Bellis (Brussels)
In a judgment of 7 May 2009, the Court of First Instance dismissed an appeal against the Commission’s decision unconditionally clearing the acquisition by Sovion of Hendrix Meat Group. The appellants (three interested third parties in the Commission’s Sovion/HMG proceedings) argued before the (...)

Regulatory

The Swiss Parliament is discussing a bill destined to reintroduce fixed book prices, once sanctioned by Swiss competition authorities for violating competition law
SWITCH
Historical Background On May 27, 2009, the National Council, one of the two chambers of the Swiss Parliament, voted in favour of the creation of a special act regulating the price of books (the Federal Act on Book Price Regulation, hereinafter the “Bill”). Although the second chamber, the States (...)

The UK High Court of Justice rules that an auction website cannot be held responsible for fake products sold through its web site and refers to the ECJ for some other key issues (L’Oréal / eBay)
EDHEC (Lille)
Is eBay primarily and/or jointly liable for trademark infringements committed by some of its users selling counterfeit items through the auction website? Does the online auctioneer itself commit infringements by using luxury brands as advertising keywords, in order to promote its online (...)

The Paris Court of First Instance considers that a leading online auctions website must benefit from the “host” legal status created under French law for online platforms (L’Oréal / eBay)
EDHEC (Lille)
eBay Inc., technical host of the website ebay.fr, eBay International, which runs the services proposed on ebay.fr, eBay Europe, which is the co-contractor of sellers and buyers (located in the EU) on eBay, eBay France, which is the advertising agency and the contact of French internet users of (...)

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