November 2004

Anticompetitive practices

The Administrative Court of Appeal of Athens quashes a decision of the NCA ruling that a refusal to integrate into a cosmetics selective distribution network undertakings not providing for dispensing chemists constituted a disproportionate requirement on the basis of both EC and Greek competition laws (Lavicosmetica)
Hellenic Institute of International and Foreign Law (HIIFL)
The case relates to a recourse brought by Lavicosmetica Cosmetique Active Hellas A.E. (hereafter Lavicosmetica) against the decision of the Hellenic Competition Commission considering that its refusal to integrate into its selective distribution network of cosmetics the department stores Hondos (...)

The Danish competition authority condemned illegal price coordination between a joint venture company and one of its parent companies (Wewers Belaegningssten)
McDermott Will & Emery (Brussels)
Danish competition authority, Wewers Belægningssten, 24 November 2004 On 24 November 2004, the Danish competition authority rendered a decision finding that the joint venture company Wewers Belaegningssten (under joint control of Ikast Betonvarefabrik and Wewers Teglvaerker) and its parent (...)

The Administrative Court of Appeal of Athens upholds a decision of the Competition Authority condemning the two major national airlines for concerted practice (Olympic Airways / Aegean Airlines)
Hellenic Competition Authority (Athens)
The case concerned the common conduct from the two major Greek airlines (100% of the internal market) to travel agencies during 2001 and 2002. This behaviour has been condemned by the Greek Competition Authority (Hellenic Competition Commission, thereafter HCC) in 2003 (Decision 249/III/2003). (...)

The French Competition Authority rejects a request for interim measures submitted to address alleged competition concerns in the sector for on-line travel deals (Lastminute.com)
French Competition Authority (Paris)
Press Release published on the official website of the French Competition Authority. On-line travel deals - The Conseil de la concurrence rejects a request for interim measures submitted by the company Lastminute.com, but pursues the investigation of the case on the merits.* On 25th June (...)

The Spanish Competition authorities condemns a price fixing agreement imposed to a reseller in the large retail distribution sector (Mondariz/EKO-AMA)
Sheppard, Mullin, Richter & Hampton LLP (Brussels)
Tribunal de Defensa de la Competencia, Case 578/04, EKO-AMA / MONDARIZ, 2 November 2004 Background The producer of bottled water Mondariz supplied EKO-AMA (a central purchase company that also operates supermarkets with bottles of water, fixing minimum resale prices for bottles of 1,5L (since (...)

Unilateral Practices

The French Competition Authority imposes a reduced fine to the French post office and mail order companies for having implemented anticompetitive discounts in their contracts (La Poste)
French Competition Authority (Paris)
Press Release published on the official website of the French Competition Authority. Anticompetitive discounts in contracts between the French post office, La Poste, and mail order companies - The Conseil de la concurrence notes the undertakings given by La Poste and reduces the penalties (...)

The Estonian Competition Board ends proceedings against the Port of Tallinn without finding discriminatory abuse (Eurodek / Port of Tallinn)
EFTA Surveillance Authority (Brussels)
1. Background information Eurodek Muuga Services OÜ (Eurodek) is a company within the Eurodek Group operating oil terminals in the Port of Muuga in Tallinn, Estonia. Port of Muuga is owned by a state owned company AS Tallinna Sadam (Port of Tallinn, PoT). PoT is the biggest cargo and passenger (...)

The Italian Competition Authority condemns abuse of dominant position in the markets for the provision of telecommunication services (Telecom Italia)
Desogus Law Office (Cagliari)
Introduction The Italian Competition Authority (AGCM) found that Telecom Italia (TI) had abused its dominant position on the fixed network telecommunications service for business customers . The abusive conduct, which violates Article 3 of the Act n° 287 of 1990, was part of a TI strategy aimed (...)

The Italian Antitrust Authority fines € 125 M the incumbent telecommunications operator for abuse of dominant position on the fixed network telecommunications services for business customers, including price squeeze practices (Telecom Italia)
Ashurst (Brussels)
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Legance - Studio Legale Associato (Rome)
,
Legance - Studio Legale Associato (Rome)
Background On 16 November 2004, the Italian Competition Authority(Autorità Garante della Concorrenza e del Mercato) has imposed a fine of € 152 million on the incumbent telecommunication operator Telecom Italia S.p.A. (Telecom Italia), for abusive behaviours on the fixed network (...)

The Hungarian Competition Council decides that the national newspapers wholesaler is not in a dominant position and rejects the retailers’ complaint despite threat of terminating business relations (Magyar Lapterjesztõ Rt)
McDermott Will & Emery (Brussels)
Gazdasági Versenyhivatal, Buvihír Hírlap Kereskedelmi Rt. (Magyar Lapterjesztõ Rt), Vj-45/2004/46, 9 November 2004 In Hungary, Magyar Lapterjesztõ Rt is the owner of all the wholesalers of daily, weekly, monthly and other papers. Magyar Lapterjesztõ Rt divided Hungary up geographically into ten (...)

The French Competition Authority dismisses a complaint regarding alleged anticompetitive practices in the sectors for Internet music downloads and digital walkmans (Apple Computer France)
French Competition Authority (Paris)
Internet music downloads - The Conseil dismisses VirginMega’s complaint against Apple, due to insufficient evidence in view of the case elements available.* On 28th June 2004, the Conseil de la concurrence received a complaint from the company VirginMega regarding practices by the company Apple (...)

Mergers

The UK Competition Commission concludes that the only effective remedy in relation to a proposed merger in the construction sector was to prohibit the merger (Knauf / Superglass)
Serle Court (London)
The operation Knauf Insulation Limited (“Knauf”) is a producer of insulation materials for use in the construction industry. Superglass Insulation Limited (“Superglass”) is also engaged in the production of insulation materials for use in the construction industry. The proposed merger relates to (...)

The French Minister of Economic Affairs clears a merger in the tableware market conditional to behavioural remedies (Arc International)
Brown Brothers Harriman (BBH) (Luxembourg)
The operation By letter dated 24 November 2004, the French Minister of Economic Affairs cleared a merger where Group Arc International acquired the exclusive control of the entities Callens-Lesage, Financière Saint-Laurent, Vachaud Distribution, Francis Piffaut & Fils. A Phase II (...)

The European Commission approves merger between two motorbikes manufacturers applying new pre-filing referral procedure under the new merger regulation (Piaggio / Aprilia)
Jones Day (Brussels)
"First experiences with the new merger regulation : Piaggio/Aprilia"* Introduction On 22.11.2004, the Commission authorised under the Merger Regulation, the proposed acquisition of Aprilia S.p.A. by Piaggio & C. S.p.A. subject to a condition intended to safeguard competition in the (...)

The EU Commission authorises an acquisition in the OTC industry creating the largest European OTC consumer health company (Bayer / Roche)
JG Associates (Brussels)
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DG COMP (Brussels)
"Merger control: Main developments between 1 September and 31 December 2004"* In November the Commission decided to authorise the acquisition of the worldwide Roche OTC business by Bayer in a deal which creates the largest European OTC consumer health company. The operation raised serious (...)

The French Minister of Economic Affairs conditionally clears a merger in phase I in the market of oil olive (Lesieur / Puget)
Brown Brothers Harriman (BBH) (Luxembourg)
The operation By letter dated 18 November 2004, the French Minister of Economic Affairs (“the Minister”) authorised the merger where the oil producer Lesieur acquired the oil brands of Uniliver Bestfoods France (namely, “Puget Classique”, “Puget Sélection douce”, “Puget Sélection fruitée” and “Puget (...)

The Dutch Competition Authority clears a merger in the healthcare sector taking into account the absence of geographical overlap of activities of the parties and limited effects of loss of potential competition due to low market shares (Evean / De Weeren)
ASML (Veldhoven)
I. Introduction On 15 November 2004, the Dutch Competition Authority (NMa) cleared the merger between Stichting Evean Zorg (Evean) and De Weeren, Stichting voor Zorg en Dienstverlening (De Weeren). While the activities of the parties overlapped in the market for intramural care and in the (...)

The Dutch Competition Authority clears a merger between two healthcare providers (Evean - De Weeren)
De Nederlandsche Bank (DNB)
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Smeets Van Empel advocaten (Amsterdam)
I. Introduction On 15 November 2004 the Dutch Competition Authority («NMa») cleared the proposed merger between two Dutch healthcare providers Stichting Evean Zorg(«Evean») and De Weeren, Stichting voor Zorg en Dienstverlening(«De Weeren»). Evean and De Weeren both provide for intramural and (...)

The Dutch NCA clears a merger in the publication sector in spite of high market shares (Werner Söderström - Malmberg)
Urgenda
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AkzoNobel (Amsterdam)
Introduction In a first phase decision the Dutch Competition Authority (NMa) approved a merger between two publishing companies that would represent approximately two thirds of the market for juvenile magazines in the Netherlands. The NMa came to this conclusion mainly due to the fact that the (...)

The Romanian Competition Authority clears the privatisation of the state-owned petrol incumbent subject to a commitment to divest a stake in a main competitor (OMV / Petrom)
Fruth Oprisan (Bucharest)
The operation Within the privatization process, OMV Aktiengesellschaft acquired 33.34% of the share stock of the previously state -owned company PETROM SA. The market(s) oil and gas exploration; exploitation, production and transport of oil and gas oil processing and refining (...)

State Aid

The French Supreme Court refers to the ECJ for a preliminary ruling concerning the qualification as State aid of the French mutual assistance tax for the benefit of traders and craftsmen (Magasins Galeries Lafayette)
Schmitt Avocats (Paris)
By decision of 16 November 2004, the French Supreme Court, the Cour de Cassation, referred to the ECJ for a preliminary ruling, under Article 234 EC, concerning the classification as state aid of the French mutual assistance tax for the benefit of traders and craftsmen (the Tax). This Tax, (...)

The Cour de Cassation seeks preliminary reference on whether tax financing retirement benefits amounted to State aid (Galeries de Lisieux)
Sheppard, Mullin, Richter & Hampton LLP (Brussels)
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Maersk (Copenhagen)
Brief description of the facts and legal issues A retail store filed an action for reimbursement of a tax, which it considered to constitute State aid, because the tax was only payable by big retail stores, whereas only small retail stores were eligible to receive the retirement benefits (...)

Procedures

La Cour de cassation confirme que, même lorsqu’il applique les articles 81 et 82 CE, le Conseil de la concurrence doit mettre en oeuvre les règles françaises de procédure (Pharma Lab, GlaxoSmithkline et Pfizer)
Freshfields Bruckhaus Deringer (Paris)
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Eversheds Sutherland (Paris)
Dans l’affaire Pharma Lab, GlaxoSmithkline et Pfizer la société Pharma-Lab, grossiste-exportateur en spécialités pharmaceutiques, avait dénoncé auprès du Conseil de la concurrence des pratiques qu’elle estimait constitutives de refus de vente en vue de restreindre le commerce parallèle de médicaments. (...)

The Maltese Commission for Fair Trading holds that it had concurrent jurisdiction with the telecommunications regulator on telecommunications issues (Datastream)
King’s College (London)
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Superior Courts of Malta
This preliminary judgement was brought about after the telecommunications undertaking that was subjected to the investigations of the Director of Fair Trading, hereinafter referred to as the “Director” (based on the Malta Competition Act), protested and held that he was precluded from doing so. (...)

A US Court of Appeals holds that American courts have authority to hear antitrust claims brought by foreign plaintiffs against foreign defendants over foreign conduct (Empagran)
Hughes Hubbard & Reed (Washington)
The twenty years since the enactment of the Federal Trade Antitrust Improvements Act (the FTAIA) in 1982 have seen steady progress in the cooperation of antitrust authorities worldwide. Prior to the FTAIA’s passage, the US’s extraterritorial application of its antitrust laws created international (...)

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