November 2005

Anticompetitive practices

The Danish Competition Council found an insolvency agreement between three medical wholesale dealers and the Danish Pharmaceutical Association to be incompatible with Art. 81 EC and relevant national competition law provision (Nomeco, Tjellesen, Max Jenne and Danmarks Apotekerforening)
Liège University
Facts In 1997, the Danish Pharmaceutical Association (“DPA”) entered into a so-called “Insolvency Agreement” with the three wholesalers of medicinal products (“the wholesalers”) active in Denmark. The agreement sought to help insolvent pharmacies - those incurring debts superior to 1 million (...)

The EU Commission fines 16 firms €290 million for their involvement in the industrial bags cartel
European Commission - DG COMP (Brussels)
Competition : Commission fines 16 firms €290 million for industrial bags cartel* The European Commission has fined 16 firms €290.71 million for operating a cartel in the plastic industrial bags market, in clear violation of EC Treaty rules which forbid cartels and other restrictive (...)

The Portuguese Competition Authority publishes a report in favour of liberalising the distribution of pharmaceutical products at retail level
London School of Economics
The Economics Department of the Catholic University of Portugal carried out a Report for the Portuguese Autoridade da Concorrência (hereinafter, “the NCA”) concerning the liberalisation of the resale of pharmaceuticals at retail level. The Report sought to: Identify barriers to entry arising (...)

The French Competition Authority sanctions six luxury hotels for having exchanged confidential commercial informations (Parisian palaces)
French Competition Authority (Paris)
Press Release published on the official website of the French Competition Authority. The Conseil de la concurrence imposes penalties on the Bristol, the Crillon, the George V, the Meurice, the Plazza Athénée and the Ritz, for exchanging confidential commercial information.* In the light (...)

The Irish Government abolishes a below-cost pricing regulation (Groceries Order)
Baker Botts (Brussels)
Covington & Burling (London)
On 8 November 2005, the Irish government announced that it would revoke the much maligned Restrictive Practices (Groceries) Order 1987 (“Groceries Order”) legislation that was enacted to tackle anti-competitive below-cost pricing conducted by large retailers. In its place, the government (...)

The Spanish Competition Court authorizes an agreement between two Spanish payment systems on cash withdrawals from their ATMs (Euro 6000 / 4B)
Spanish Competition Authority (CNMC) (Madrid)
Three card payment systems operate in the Spanish market. Two of them, Euro 6000 and 4B, reached an agreement (Agreement set on the 17th of May 2001, from now on “The Agreement”) setting the conditions that govern bilateral services provided when using their debt cards on their respective (...)

A Dutch Court orders a car manufacturer to disclose technical information to independent repairers on the basis of EC Reg. n° 1400/2002 (Pca/Peugeot)
European Commission - DG COMP (Brussels)
PCA is an association of car dealers active in the reparation and maintenance services of Peugeot cars. Peugeot NL imports Peugeot cars in The Netherlands and has selected authorised repairers for the distribution and maintenance of its cars (authorised repairers). Regulation (EC) n° (...)

The French Competition Authority imposes record fines on the mobile telephone operators for market sharing and exchange of information (Orange / SFR / Bouygues)
Gide Loyrette Nouel (Paris)
On November 30th 2005, the French Competition Council (the “Council” ) imposed heavy fines on the three mobile telephone undertakings, Orange France, SFR and Bouygues Telecom, amounting to a € 534 millions total. The allotment of the fines was as follows : Orange France: 256 million Euros (...)

Unilateral Practices

The Danish Competition Authority clears a new distribution agreement put into place by the leading news services agency (Ritzau)
BECI (Brussels)
Liège University
Ritzau Bureau I/S (hereafter “Ritzau” ) is an agency that provides extensive Danish-language news coverage - both national and international - all around the clock. The value of these services to media operators (i. e. newspaper, radio and television) is twofold. First, it provides them with (...)

The Belgian Competition Authority accepts commitments in order to improve competition on the soft drink market (Coca-Cola)
BECI (Brussels)
Liège University
This case began in 1998 when a wholesaler, Distri-One, complained to the Competition Office of the Federal Public Service Economy (hereinafter the “Competition Office”) about the distribution practices of Coca-Cola Enterprises Belgium (hereinafter CCEB) on the basis of article 3 of the Belgian (...)

The Slovak Competition Authority concludes that an airport abused its dominant position by not granting access to the essential facility of the airport apron (Airport Bratislava / Two Wings)
Havel and Partners (Brno)
I. Relevant facts In its Airport Bratislavadecision, the Slovak Antimonopoly Office stated that Letisko M.R.Štefánika - Airport Bratislava (Airport BA) abused its dominant position according to Article 8 (2) of the Competition Act, because it did not provide access to an airport apron at the (...)

The Czech Competition Authority declares that the refusal of access to a bus station to competing bus line operators does not amount to an abuse of dominant position (CAS-Service)
Wolf Theiss (Prague)
Czech Ministry of Justice (Prague)
In a decision rendered on 25 November, 2005, the Czech Office for the Protection of Competition concluded that CAS-SERVICE a.s. (“CAS”), the operator of the bus station in the Southern Moravian city of Znojmo, had not abused of its dominant position on the market of services offered to bus (...)

The Czech Competition Authority renders its first case under Art. 82 EC and imposes a fine on the telecommunications incumbent for abuse of dominant position (Ceský Telecom)
Gide Loyrette Nouel (Prague)
By its decision of 24 November 2005, the Czech Office’s Chairman confirmed the Office’s first-instance decision and (i) imposed a fine of 205 million CZK on Èeský Telecom a.s. (which is since July 2005 controlled by a Spanish company, Téléfonica) (“CT”) for having abused its dominant position (...)

The French Competition Authority fines the postal incumbent for abuse of dominant position under both national and EC competition provisions (La Poste)
Juliette Goyer Avocat (Paris)
Autorité de la concurrence (Paris)
In a decision dated 17 November 2005 (Decision n° 05-D-63), the French Competition Council sanctioned La Poste, the French postal service, for abusing its dominant position and imposed €1 million fine based on both Article L. 420-2 of the French Commercial Code and Article 82 of the EC Treaty. (...)

The Brussels Court of Appeal rules that a non-compete clause does not qualify as an anticompetitive agreement under Article 81 EC but constitutes an abuse of a dominant position based on Article 82 EC (WEX / FEBIAC)
European Chemicals Agency (Helsinki)
Suez Environnement (Paris la Défense)
Background FEBIAC, a Belgian federation of road transport vehicle manufacturers, organises road transport fairs for commercial vehicles in Brussels every other year. The 2005 fair would run from 14 to 23 January 2005. FEBIAC’s general conditions for participating at the 2005 fair contained a (...)

The German Federal Court of Justice holds that the rights holder of the Bundesliga football matches did not abuse of its dominant position by asking a radio to pay a fee for live broadcasting (Ligaverband)
Eversheds Sutherland (Düsseldorf)
Background The plaintiff operates a local radio station in Hamburg. The defendant, the Ligaverband, holds the marketing rights for all football matches of the Bundesliga, the German football league. Until 2001, the plaintiff broadcasted during its regular programmes short live reports from (...)

The French Competition Authority dismisses a complaint regarding competition concerns on the market of passenger transport to the Isle of Saint Honorat (Cistercian monks of the Isle of Saint Honorat)
French Competition Authority (Paris)
The Conseil de la concurrence rules that the Cistercian monks of the Isle of Saint Honorat did not ignore competition law by restricting passenger transport to and from the island exclusively to a company under their control.* In a decision dated 8th November 2005, the Conseil de la (...)

The French Competition Authority imposes an unprecedented € 80 M fine to the telecommunications incumbent for abuse of a dominant position on the broadband internet market (France Télécom)
Sheppard Mullin (Brussels)
Lni avocats (Paris)
In November 1999, Neuf Télécom, a telecommunications operator, filed a complaint with the French Competition Council (hereinafter “the Council”) against France Télécom, the French historic telephone and Internet provider, on the grounds that the latter was conducting anti-competitive practices (...)

The Brussels Court of Appeal rules that the major national collecting society has abused its dominant position after having received an opinion from the EU Commission (SABAM / Productions & Marketing)
BECI (Brussels)
Liège University
The Parties The case opposed the Belgian Society of Authors, Composers and Publishers (SABAM) and Productions & Marketing (P&M), a company whose business activities consist of the organization of concerts and musical events. Background In 2000 and 2001, P&M organized Charles (...)

The Brussels Court of Appeal holds that the national copyright management society abused its dominant position while relying on an EU Commission written opinion delivered in the assistance procedure (SABAM / Productions & Marketing)
Sheppard Mullin (Brussels)
CaaStle (New York)
In April 2000, Productions & Marketing requested authorisation from SABAM (Belgian Society of Authors) to use works of its catalogue for five concerts. SABAM offers a preferential tariff (50% price reduction) to companies considered as "big organisers". SABAM refused to grant Productions (...)

The French Competition Authority fines two firms for abusing their dominant position in the water market (Sedif-Lyonnaise des Eaux)
Paris School of Economics
The French Competition Authority (“Conseil de la concurrence”) fined two firms for abusing their dominant position in local water markets in the Paris region. The Decision addresses two distinct sets of practices. The Syndicat des Eaux d’Ile de France (“Sedif”) was fined € 100,000 for trying (...)

The Swedish Market Court rejects a complaint on alleged abuse of dominant position on the fixed telephony market by practicing mixed bundling (B2 Bredband / TeliaSonera)
Danish Competition and Consumer Authority (Copenhagen)
On 1st November 2005, the Swedish Market Court rejected a claim by B2 Bredband Holding AB (Bredbandsbolaget) according to which TeliaSonera was in abuse of its dominant position on the Swedish market for fixed telephony. The contested practice consisted in providing a rebate on fixed telephony (...)

The Swedish Market Court rejects a complaint against the incumbent for abusive mixed bundling and predatory pricing in the broadband internet access sector (B2 Bredband / TeliaSonera)
Cederquist (Stockholm)
Background Bredbandsbolaget sues Teliasonera for abuse of a dominant position on the market for fixed telephony through illegal mixed bundling, customer discrimination and predatory pricing but fails to prove dominance. Decision On 1 November 2005 the Swedish Market Court rendered its (...)


The French Minister of Economy grants conditional clearance to a merger in the tools sector (Stanley / Facom)
Paris Dauphine University
The operation By a letter dated 30 November 2005, the French Minister of Economy, Finance, and Employment grants in phase I a conditional clearance of the acquisition of all of shares of the French company Facom by the American company The Stanley Works (“Stanley”). Stanley and Facom are (...)

The Portuguese Competition Authority clears a merger in the electrical power production business, including remedies such as to maintain the maximum availability for production from wind generation facilities (Enernova II)
PLMJ (Lisbon)
The operation ENERNOVA - NOVAS ENERGIAS, S.A. (Enernova) is a company fully owned by EDP - Energias de Portugal, S.A., which operates electrical power production from wind energy. BOLORES - ENERGIA EÓLICA, S.A. (Bolores) is a company which operates wind farms (in particular Bolores e (...)

The Portuguese Competition Authority clears a merger in the insurance sector with remedies including divestiture (Caixa Seguros/HNC-BCP Seguros)
PLMJ (Lisbon)
The operation The operation consists in the acquisition of sole control over four companies operating the insurance business (which are currently owned by SEGUROS E PENSÕES GERE, holding of BANCO COMERCIAL PORTUGUÊS GROUP for the insurance sector) by Caixa Seguros SGPS, S.A. (Caixa Seguros) (...)

The Portuguese Competition Authority blocks a merger in the market for passenger road and rail public transport service in spite of proposed remedies (ATMS - Arriva Transportes da Margem Sul / Barraqueiro SGPS - Arriva Investimentos SGPS)
Cuatrecasas (Lisbon)
Entidade Nacional para o Mercado dos Combustíveis, E.P.E. (Portuguese National Entity for Fuel Market)
The present concentration was the first decision from the Competition Authority (“AdC”) prohibiting a merger in Portugal. It was notified to the AdC on 22 November 2004 and consisted of the acquisition of joint control by Barraqueiro SGPS, S.A. (“Barraqueiro”) and Arriva Investimentos SGPS, (...)

The Irish Competition Authority clears a merger in the telecommunications sector subject to remedies, including adoption of an accounting strategy aimed at preventing risks of cross subsidisation (Eircom / Meteor)
London School of Economics
The mobile telecommunications market in Ireland has been consistently dominated by two key players, Eircom and Vodafone with Meteor, a third operator, featuring in a distant third position. However, despite Eircom’s overall superior position on the mobile telecommunications market, it lags (...)

The Icelandic Competition Authority cleared a merger in the television industry subject to remedies, including restrictions on board membership and also on combined selling and measures which could reduce third-party access (365 / Saga)
PwC (Reykjavik)
The operation On 29 July 2005 the Icelandic Competition Authority (ICA) was notified that 365 ljosvakamidlar ehf (365) had acquired all the shares of Saga film hf (Saga).365 is a company that runs both free and subscription television channels and radio channels. Saga film is a company that (...)

The Norwegian Ministry of Government Administration and Reform clears without remedies a merger previously conditionaly authorised by the NCA in the oil well drilling equipment and services sector (National Oilwell / Varco)
BDO (Stavanger)
The operation National Oilwell, Inc. and Varco International, Inc., both US corporations) merged on 11 March 2005. The Norwegian Competition Authority (NCA) was notified of the proposed merger on 14 December 2004. National Oilwell is a worldwide leader in the design, manufacture and sale (...)

The Portuguese Competition Authority clears a merger in the electrical power production sector subject to remedies, including loyal exploitation of facilities and maintaining maximum production availability (Enernova / Ortiga / Safra)
PLMJ (Lisbon)
The operation ENERNOVA - NOVAS ENERGIAS, S.A. (Enernova) is a company operating in the electrical power production from wind energy. ORTIGA, ENERGIA EÓLICA, S.A. (Ortiga) is a company whose corporate purpose is to promote, construct, maintain and operate the facilities needed for the (...)

The French Minister of Economics clears a merger in the sector of large stores with structural remedies (Carrefour/Penny Market)
Paris Dauphine University
The operation By a letter dated 10 November 2005, the French Minister of Economy, Finance, and Industry authorized the merger between two groups of large stores : the French group Carrefour group (“Carrefour”) and Penny Market. Carrefour acquired, by its subsidiary “DIA”, 100% share of Penny (...)

The EU Commission clears, subject to divestiture, an acquisition in the packaging industry (Jefferson Smurfit / Kappa)
JG Associates (Brussels)
European Commission - DG COMP (Brussels)
"Mergers — Main developments between 1 January and 30 April 2006"* In September the Irish-based international packaging group, Jefferson Smurfit (‘JSG‘) notified its plan to acquire the Dutch company Kappa Holding B.V. (‘Kappa‘). JSG is an international packaging company with operations in (...)

The Irish Competition Authority clears a merger in the entertainment and communications industry subject to 19 remedies addressing issues arising from the cross-ownership/cross-management of the two concerned groups (UGC-Chorus / NTL)
World Economic Forum (Geneva)
The operation On 4 November 2005 and following a Phase 2 review, the Irish Competition Authority (ICA) cleared the acquisition by UPC Ireland B.V. (“UPC Ireland”) of MS Irish Cable Holdings B.V (“MSICH”). Both companies were set up specifically for the transaction. The underlying structure (...)

The Norwegian Competition Authority accepted a merger in the health food and supplements sector, subject to the divestment of two business units carved out from the target (Orkla/Collett Pharma)
BDO (Stavanger)
The operation On 15 June 2005 Orkla ASA acquired the entire share capital of Collett Pharma AS from investment funds of Ferd Private Equity (Ferd). Orkla is a supplier of branded consumer goods to the Nordic grocery market, and operates in the branded consumer goods, materials, renewable (...)

The UK Competition Authority clears a Phase II merger in the securities exchange sector subject to two similar packages of structural and behavioural remedies for either one of the competing bidders (Deutsche Börse / Euronext / London Stock Exchange)
World Economic Forum (Geneva)
The operation The parties involved in this investigation were Deutsche Börse AG and Euronext NV, the competing bidders, and the London Stock Exchange, the target. The intended acquisitions were notified to the Office of Fair Trading (OFT) separately by each bidder. When both were referred (...)

State Aid

The German Higher Regional Court of Thuringia judges that when dealing with the recovery of unlawful State aid, the provisions of the German laws on maintenance of capital and insolvency should be considered, so long as this does not contravene the rationale of Article 87(1) EC (Insolvency procedure 3)
Delegation of the European Union to the United States (Washington D.C.)
European Commission
Brief description of the facts and legal issues The Thuringia Higher Regional Court judges that when dealing with the recovery of unlawful State aid, the provisions of the German laws on maintenance of capital and insolvency should be considered, so long as this does not contravene the (...)

The Danish Competition Authority orders a municipality to terminate the payment of unlawful State aid in relation to the prices paid by the municipality to private companies in the field of home care and requests the municipality to re-calculate the settlement prices following guidance provided to this effect by the Competition Authority (Fritvalg / Morsø Kommune)
Honoré, Fallesen & Andersen - HFA Law (Copenhagen)
Factual Background In the present case the Danish Competition Authority (DCA) examined the prices paid by the municipality of Morsø to private companies in the field of home care. Summary of the Court’s findings The DCA stressed that under Section 11a of the Danish Competition Act the (...)

The EU Commission rules that subsidy for digital terrestrial television in Germany is illegal (DVB-T)
European Commission - DG COMP (Brussels)
"Commission rules subsidy for digital terrestrial television (DVB-T) in Berlin-Brandenburg illegal"* I. Introduction On 9 November 2005, the Commission took a final decision regarding subsidies for the introduction of digital terrestrial television (DVB-T) in the German Landerof Berlin and (...)

The Berlin Higher Administrative Court issues a ruling which finds that the recovery of aid ordered by the commission in a negative decision can be implemented and enforced unilaterally by German authorities based on public law even in cases in which the aid were granted on the basis of private law
Gleiss Lutz (Brussels)
Jones Day (Brussels)
Gleiss Lutz (Brussels)
The Berlin-Brandenburg Higher Administrative Court has ruled that a Commission’s negative decision ordering the recovery of aid may be implemented and enforced unilaterally by German authorities by means of an administrative act (i.e. based on public law) even if the aid were granted on the (...)

The German Higher Administrative Court of Berlin-Brandenburg supports the German government’s attempt to make recovery of unlawful State aid more effective (Kvaerner Warnow Werft)
Eversheds Sutherland (Düsseldorf)
Background The Member States of the European Union are required to recover unlawful (i.e. non notified) State aid following a negative decision by the European Commission (“Commission”), declaring an aid incompatible with the common market. Under German law, the Verwaltungsakt (...)


The Versailles Court of Appeal concludes that the motor vehicle block exemption regulation EC N° 1400/2002 amounts to a substantial change in the legal environment of car manufacturers justifying a complete reorganisation of distribution networks (Daimler-Chrysler/SO.PA.VI.A)
Freshfields Bruckhaus Deringer (Paris)
SO.PA.VI.A had been entrusted by Daimler Chrysler France with the exclusive distribution of new motor vehicles of the Mercedes Benz trademark in the Pau/Tarbes area (i. e. south-west of France), pursuant to an agreement of 25 September 1996 complying with the previous block exemption (...)

A Spanish Commercial Court orders an undertaking to compensate a competitor for damages resulting from abuse of dominant position - without any previous final decision from the NCA - concerning access to telecommunications databases (Conduit/Telefónica)
Associated British Foods (Madrid)
Meliá Hotels International (Palma)
Telefónica de España, S.A.U (“Telefónica3”) has been ordered by the Madrid Commercial Court Number 5 to pay € 639 003 to a competitor due to the losses arising from the abuse of dominant position of Telefónica in the Spanish telecommunications market. In April 2003, effective liberalization (...)

A Spanish Court rules on private actions for damages derived from antitrust law infringements in the subscriber directory inquiries market (Conduit / Telefónica - Antena 3 / Spanish Football League)
DG TRADE (Brussels)
Garrigues (Brussels)
Ever since the early seventies, the ECJ made it clear that European competition rules produce direct effects in relations between individuals and create subjective rights that have to be safeguarded by the national courts . This reasoning permitted the CFI to admit that the Commission is (...)

The French Competition Council defines relevant product market and assesses dominance on an application for preliminary ruling from the Paris district Court (Luk Lamellen/Valeo)
Freshfields Bruckhaus Deringer (Paris)
US Federal Trade Commission (FTC) (Washington)
In January 2005, the Paris district court (Tribunal de grande instance de Paris (TGI)) rejected a patent enforcement action of LuK Lamellen und Kupplungsbau (LuK) , a dual-mass flywheel (DMF) producer, against one of its direct competitors, Valéo. In a contingent counterclaim, Valéo alleged (...)

The UK OFT proposes for the first time a settlement in order to cease information exchange and price-fixing (Independent Schools)
King’s College (London)
In recent years the Office of Fair Trading (the “OFT”) has been concerned about exchanges of information by UK independent schools. For some years it has been conducting an investigation into allegations of price fixing, through a voluntary exchange of information, by 50 independent schools (...)

The England & Wales High Court holds that Article 101 and 102 TFEU claims are arbitrable (Eurotunnel)
White & Case (London)
Pinsent Masons (London)
Background In 1994, Eurotunnel (a joint venture operated by the eighth and ninth defendants, Channel Tunnel Group Limited and France Manche SA, respectively) entered into a contractual relationship with Transferry SPA and ET Plus Lux SA (the sixth and seventh claimants) whereby the claimants (...)

The Hungarian Parliament "modernizes" the Hungarian Competition Act (HCA)
Bassola (Budapest)
Note In 2005 important provisions of the Hungarian Competition Act (hereinafter “HCA”) were amended . Also, new rules about the criminalisation of certain collusions in public procedures were incorporated into the Hungarian Criminal Code . 1. The system of individual exemptions was (...)