November 2008

Anticompetitive practices

 The Bulgarian Parliament adopts an act on the protection of competition
Dessislava Fessenko (London)
United Kingdom 32 contributions 86054 visits
A new Bulgarian Act on the Protection of Competition (the “New APC”) entered into force on 2 December 2008. The New APC is aimed at the further convergence of the Bulgarian substantive and procedural rules in the field of antitrust, abuse of dominance and merger control with the Community (...)

The EU Commission presents its preliminary report into the pharmaceutical sector
Secretary of State for the Home Department (London)
United Kingdom 17 contributions 35151 visits
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Sciences Po (Paris)
France 7 contributions 12701 visits
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Euclid Law (London)
United Kingdom 16 contributions 5237 visits
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The European Commission presented its Preliminary Report into the pharmaceutical sector (which runs to 426 pages) at a public hearing on 28 November. The deadline for comments on the Report is 31 January 2009. Click here for a copy of the Report, the Commission’s press release and the (...)

The French Civil Supreme Court rules that the violation by foreign websites of the obligation to inform consumers on the existence of a copyright levy constitutes unfair competition to a French company (Rue du Commerce / Dabs / Omnisoft and others)
Google (Paris)
France 12 contributions 38948 visits
Copyright laws of most European Member States provide that the price of storage products such as tapes or discs include a copyright levy, to compensate authors whose work will be copied on these media. The amount of this copyright levy differing from one country to another, resellers of such (...)

The EU Court of Justice Advocate General Mengozzi recommends annulment of CFI’s judgment in the collective management of copyright sector (AEPI)
Court of First Instance of Namur (Namur)
Belgium 224 contributions 47561 visits
Advocate General (AG) Mengozzi has recently delivered two interesting opinions in the field of competition law enforcement. On appeal in the AEPIand Archer Daniels Midlandcases, he advised the Court of Justice to quash the judgments of the Court of First Instance (CFI). He further recommended (...)

The Danish Competition Authority imposes the highest personal fine ever on flour producer and its director for resale price maintenance contrary to the Competition Act (Valsemølle)
Plesner (Copenhagen)
Denmark 41 contributions 74398 visits
On 27 November 2008, the Danish flour producer Valsemølle A/S and its director accepted fines of DKK 1 million (EUR 134,000) and DKK 100,000 (EUR 13,000) respectively for having infringed Article 6 of the Danish Competition Act (national provision similar to Article 81 of the EC Treaty) by (...)

The Austrian Cartel Court imposes fines of €1.9 million on a company member of a cartel affecting the supply of industrial chemicals (Donau Chemie / Donauchem)
Reidlinger Schatzmann Rechtsanwälte (Vienna)
Austria 21 contributions 82716 visits
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OBB (Vienna)
Austria 2 contributions 4933 visits
On 5 November 2008 the Austrian Cartel Court has imposed a fine of € 1.9 million on Donau Chemie AG and Donauchem GmbH, both part of the Donau Chemie Group, for their participation in a cartel affecting the supply of industrial chemicals. Further to that, the Cartel Court rejected the (...)

The Serbian Competition Authority holds unlawful minimum tariffs imposed to members of a professional association (Veterinary Chamber of Serbia)
University of Belgrade
Serbia 8 contributions 22841 visits
Following a complaint, the Serbian Competition Authority (Komisija za zastitu konkurencije) started an investigation concerning the fixation of minimum prices by the Veterinary Chamber of Serbia (“Veterinarska komora Srbije”), a professional association of veterinaries. The Competition (...)

The Competition Authority of Bosnia & Herzegovina prosecutes anticompetitive agreements from the regional health insurance office (Novo Nordisk / Health Insurance Office of the Sarajevo Canton)
University of Macau - Faculty of Law
China 284 contributions 226288 visits
Summary The Competition Authority of Bosnia & Herzegovina qualified the actions of the Health Insurance Office of the Sarajevo Canton, which excluded the pharmaceutical products of Novo Nordisk from the list of approved medicines sold to the insured under the national health insurance (...)

The Greek Competition Authority condemns two multinational companies for a rebate scheme in the gasoline market (BP / Shell)
Hellenic Competition Commission (Athens)
Grèce 9 contributions 28610 visites
The case concerned the common conduct from the two multinational companies in the Greek gasoline market BP and Shell (40% of the internal market) from 1st January 2003 until 31 Decemer 2003. In particular, the investigation carried out ex officio by the Hellenic Competition Commission (HCC) (...)

The EU Court of Justice rules on the capacity of reduction agreements in an Irish beef case (Beef Industry Development Society / Barry Brothers)
Van Bael & Bellis (Brussels)
Belgium 389 contributions 95131 visits
On 20 November 2008, in a ruling on a preliminary reference from the Irish Supreme Court, the European Court of Justice (ECJ) found that the object of an agreement between Irish beef processors designed to reduce overcapacity in the sector was anti-competitive. In its ruling, the ECJ followed (...)

The US DoJ Antitrust Division adopts revised leniency program to restricts corporate options in responding to cartel allegations
Miller & Chevalier (Washington)
United States 1 contribution 157 visits
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US Department of Justice (Washington)
United States 7 contributions 2263 visits
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Adam J Schwartz, Attorney At Law (Los Angeles)
United States 1 contribution 157 visits
In direct response to the Department of Justice Antitrust Division’s loss in the controversial Stolt-Nielsen criminal antitrust case, the Antitrust Division revised its leniency policy. The Division has prepared revised Model Leniency Letters and issued an explanatory document entitled (...)

The US DoJ issues new guidance on its antitrust criminal leniency program
Jones Day (Washington)
United States 18 contributions 8058 visits
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Jones Day (Washington)
United States 15 contributions 9379 visits
On November 19, the Antitrust Division of the U.S. Department of Justice (« DOJ ») issued new guidance on its leniency program, under which cartel participants that cooperate with the government may avoid prosecution. This detailed guidance, « Frequently Asked Questions Regarding the Antitrust (...)

The United States District Court for the District of Massachusetts draws rule of reason around relationships with retailers who compete with their own store brands (Bedi / Hewlett-Packard and Staples)
Washington and Lee University School of Law (Lexington)
United States 11 contributions 9280 visits
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U.S. Securities and Exchange Commission (Washington)
United States 1 contribution 106 visits
Agreements between suppliers and retailers are typically viewed under a rule of reason applicable now to virtually all “vertical” relationships in a supply chain. Many retailers, however, also market their own store brands which compete with branded products they purchase from their (...)

A US Federal District Court rejects per se rule for vertical market allocation agreement (Hewlett-Packard, Staples)
Jones Day (Houston)
United States 35 contributions 15900 visits
A federal district court has dismissed the claim that an agreement between Hewlett-Packard (HP) and its customer Staples office supply stores, under which Staples stopped selling its own ink cartridges for HP printers, was a per se illegal antitrust violation. This new decision provides a (...)

The Dutch Competition Authority decides not to impose fines on ten producers of fluid-concrete as the participation of all undertakings in the infringement was not established and as result no appreciable restriction of competition could be determined (Betonmortelfabriek Utrecht)
Cuatrecasas (Madrid)
Spain 3 contributions 1297 visits
Introduction On January 11, 2006 the Dutch Competition Authority (NMa) imposed fines on ten Dutch producers of fluid-concrete for a total amount of € 6 million for an infringement of Article 6 of the Dutch Competition Act. According to the NMa the undertakings exchanged information about (...)

The UK Competition Commission publishes for consultation its proposed remedies to improve competition in payment protection insurance market (PPI)
New Zealand Commerce Commission (Wellington)
New Zealand 4 contributions 11857 visits
Summary The Competition Commission has recently invited consultation on its proposed remedies to improve competition in the payment protection insurance (PPI) market. The Competition Commission designed the proposed remedies to overcome a “point-of-sale” advantage that suppliers of loans (...)

The Luxembourg Administrative Court confirms the fines and daily penalties imposed by the Competition Authority on undertakings for not communicating explicit information to the Competition Inspectorate (SECS)
Arendt & Medernach (Luxembourg)
Luxembourg 57 contributions 110463 visits
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European Bank for Reconstruction and Development (London)
United Kingdom 2 contributions 4381 visits
Background of the case 1. The flooring works in the new court buildings in the city of Luxembourg are still the object of the most prolific cartel procedure in the recent history of Luxembourg competition law. The case has already led to several decisions while the cartel investigations are (...)

The US DOJ fines three leading electronics manufacturers for price fixing cartel in the LCD panels industry (LG, Sharp, Chunghwa)
Jones Day (London)
United Kingdom 30 contributions 22014 visits
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Jones Day (Washington)
United States 15 contributions 9379 visits
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Jones Day (Washington)
United States 6 contributions 3139 visits
This week, in separate new matters, the United States and the European Union announced the detection and prosecution of price fixing agreements among competitors. The U.S. Department of Justice reported guilty pleas and fine agreements by three Asian manufacturers of liquid crystal display (...)

The European Commission fines automobile glass suppliers for market sharing cartel (Saint-Gobain, Pilkington, Asahi/AGC, Soliver)
Jones Day (London)
United Kingdom 30 contributions 22014 visits
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Jones Day (Washington)
United States 15 contributions 9379 visits
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Jones Day (Washington)
United States 6 contributions 3139 visits
This week, in separate new matters, the United States and the European Union announced the detection and prosecution of price fixing agreements among competitors. The U.S. Department of Justice reported guilty pleas and fine agreements by three Asian manufacturers of liquid crystal display (...)

The Polish Court for Competition and Consumer Protection overturns the NCA’s decision on interchange fee holding that the participation of 20 banks in an agreement fixing the fee level does not constitute an infringement (Visa / Mastercard)
Greenberg Traurig (Warsaw)
Poland 30 contributions 80248 visits
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UNIMOT (Zawadzkie)
Poland 12 contributions 34858 visits
On 12 November 2008, the Polish Court for Competition and Consumer Protection (“the Court”) overturned the decision of the President of the Office for Competition and Consumers’ Protection (the “OCCP” or the “Office”) concerning interchange fees. The court stated that the participation of 20 (...)

The German federal competition authority holds the boycott of diary farmers violates national competition law (Milchboykott)
ADVANT Beiten (Brussels)
Belgium 2 contributions 9872 visits
Background In 2008 Germany bore witness to a controversial power struggle between dairy farmers on the one side and dairies and food retail companies on the other side. The Federal Dairy Farmers Association in Freising, Germany (Bundesverband Deutscher Milchviehhalter e.V. ; BDM), represents (...)

The European Commission imposes the highest-ever cartel fine on four car glass manufacturers (Asahi Glass Company, Saint-Gobain, Pilkington, Soliver)
1 contribution 769 visits
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European Commission - DG COMP (Brussels)
Belgium 2 contributions 1183 visits
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European Commission
Belgium 4 contributions 2775 visits
"Commission imposes the highest-ever cartel fine (more than € 1.3 billion) on four car glass manufacturers"* On 12 November 2008 the Commission adopted a decision and imposed fines totalling € 1 383 million on four manufacturers of car glass. The addressees of the decision were the Japanese (...)

The Japan Fair Trade Commission issues cease and orders and imposes surcharges on several manufacturers and sellers of automatic ambient air monitors for having implemented a price-fixing agreement (DKK-Toa, Horiba, Kimoto Electric and Shimadzu)
Japan Fair Trade Commission (Tokyo)
Japan 140 contributions 24998 visits
Cease and Desist Order and Surcharge Payment Order against Manufacturers and Sellers of Automatic Ambient Air Monitors* The Japan Fair Trade Commission (JFTC) has examined the manufacturers and sellers of automatic ambient air monitors (automatic measuring instruments to continuously measure (...)

The German FCO imposes fine of € 15.6 M on supplier of road salt (Südsalz)
Van Bael & Bellis (Brussels)
Belgium 389 contributions 95131 visits
According to a press release of 12 November 2008, the German Federal Cartel Office (FCO) has fined Südsalz GmbH € 15.6 million for fixing prices in the regions of Southern Bavaria and Baden-Württemberg and allocating sales territories in Southern Germany in the market for road salt. The (...)

The Czech Chamber of Deputies adopts a new Code criminalising horizontal agreements
Wolf Theiss (Prague)
Czech Republic 33 contributions 109953 visits
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Czech Ministry of Justice (Prague)
Czech Republic 30 contributions 80913 visits
After 11 November 2008, it appears that the managers of cartel members will have to add Prague to the growing list of “Airports to Avoid”. In fact, on that day, the Czech Chamber of Deputies adopted a new Criminal Code which, among other things, introduces the criminal offence of “breach of (...)

The Mannheim Regional Court holds that reciprocal representation agreements concluded between national collecting societies are not void (GEMA / BUMA / STEMRA)
Gleiss Lutz (Munich)
Germany 28 contributions 49245 visits
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Milbank (Munich)
Germany 28 contributions 49245 visits
On 7 November 2008, the Regional Court of Mannheim issued a decision on the validity of territorial limitations contained in reciprocal representation agreements concluded between national collecting societies. The case concerned the question whether a national collecting society was entitled (...)

The EU Court of Justice Advocate General Mengozzi recommends annulment of CFI’s judgment in the chemical sector (Archer Daniels Midland)
Court of First Instance of Namur (Namur)
Belgium 224 contributions 47561 visits
Advocate General (AG) Mengozzi has recently delivered two interesting opinions in the field of competition law enforcement. On appeal in the AEPIand Archer Daniels Midlandcases, he advised the Court of Justice to quash the judgments of the Court of First Instance (CFI). He further recommended (...)

The Hungarian Competition Authority closes case against a professional association (Hungarian Chamber of Pharmacists)
Van Bael & Bellis (Brussels)
Belgium 389 contributions 95131 visits
By an order of 4 November 2008, which has recently become publicly available, the Hungarian Competition Authority (“GVH”) decided to terminate its investigation into alleged anti-competitive practices by the Hungarian Chamber of Pharmacists (the “Chamber”) on the market for pharmaceuticals. (...)

The Spanish Supreme Court firmly protects price competition in the liberal professions and gives a controversial view on the interaction between EC and national competition Law (Ricardo)
DG TRADE (Brussels)
Belgium 30 contributions 119636 visits
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Garrigues (Brussels)
Belgium 28 contributions 104431 visits
Introduction On 4 November 2008, the Spanish Tribunal Supremo (Supreme Court) handed down a landmark ruling in case 5837/2005, Ricardo v. Consejo General de la Abogacía. This case looks set to be a cornerstone of Spanish competition law for years to come. The judgment was delivered by the (...)

Unilateral Practices

 The EU Commission approves structural remedies offered by German electricity operator to remove suspected infringements of EU Article 102 concerns in the German electricity wholesale and balancing markets (E.ON)
DG REGIO (Brussels)
Belgium 3 contributions 3070 visits
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European Commission - DG COMP (Brussels)
Belgium 6 contributions 6207 visits
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European Union Agency for the Cooperation of Energy Regulators (ACER) (Ljubljana)
Slovenia 3 contributions 3449 visits
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"The E.ON electricity cases: an antitrust decision with structural remedies"* I. Introduction On 26 November 2008 the Commission adopted a commitment decision addressed to E.ON AG for suspected infringements of EU competition law involving the German electricity markets. For the first time (...)

The Italian Competition Authority holds that airports abused their dominant position by setting excessive fees (Aeroporti di Milano)
Municipality of Cagliari
168 contributions 134337 visites
The Italian Competition Authority (ICA) has ruled that SEA, the manager of the Milan airports of Linate and Malpensa breached Art. 82 EC and imposed on it a fine of € 1,549,000. SEA abused its dominant position it enjoyed at the airports of Linate and Malpensa as holder of an exclusive (...)

The EU General Court examines an appeal of a leading computer manufacturer against a Commission’s decision on abuse of dominant position (Intel)
Court of First Instance of Namur (Namur)
Belgium 224 contributions 47561 visits
On 22 November 2008, details were published in the Official Journal of the European Union of an appeal brought by Intel to annul decisions of the Hearing Officer and the European Commission. The decisions relate to Article 82 EC proceedings regarding Intel’s alleged conduct in excluding its (...)

The Swedish District Court in Stockholm awards damages for the abuse of a dominant position in the financial services market (Europe Investor Direct / VPC)
Djungo (Stockholm)
Sweden 22 contributions 54390 visits
Background The Claimants (Europe Investor Direct Aktiebolag, Rutger Kahn Kommanditbolag and OÜ E Direct) provide information to investors on behalf of large listed companies that wish to sell more shares. In order to contact investors, the Claimants had requested registers of shares, (...)

The UK Office of Fair Trading finds abuse of dominance by predatory conduct in the bus industry (Cardiff Bus)
King’s College London
United Kingdom 16 contributions 22342 visits
By its decision of 18 November 2008, the Office of Fair Trading (the ‘OFT’) found that, during the period from 19 April 2004 to 18 February 2005, Cardiff City Transport Services Limited (‘Cardiff Bus’) infringed the prohibition imposed by section 18(1) (the ‘Chapter II prohibition’) of the (...)

The Cypriot Competition Authority holds that the lowering of prices for international calls by the incumbent does not constitute price squeeze (Areeba / ATHK)
Neocleous (Nicosia)
Cyprus 5 contributions 3733 visits
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Neocleous (Nicosia)
Cyprus 3 contributions 2337 visits
The Competition Commission concluded that the lowering of prices for international calls by CYTA (the telecommunications authority in Cyprus with a dominant position in the market) did not constitute price squeezing or restriction of profit margin to the detriment of CYTA’s competitor Areeba (...)

A German Court confirms a decision of the local competition authority in which excessive retail water prices were prohibited on the basis of former German competition law provisions that still apply to the public water sector (Wasserversorgung Wetzlar)
Hengeler Mueller (Düsseldorf)
Germany 16 contributions 48583 visits
I. Background The ruling of the Higher Regional Court Frankfurt/ Main (Oberlandesgericht Frankfurt/ Main) confirms a decision of the competition authority of the Federal State Hesse in which the authority prohibited excessive water prices on the retail level charged by the public water (...)

The Cypriot Competition Authority holds that the incumbent airways operator does not abuse its dominant position while providing visa services with airplane tickets (Yiannas Euripidou / Cyprus Airways)
Neocleous (Nicosia)
Cyprus 5 contributions 3733 visits
Yianna Euripidou filed a complaint to the Cyprus Competition Commission as a consumer. She had visited Dubai by buying a ticket and VISA through the Cyprus Airways airline. The Visa was charged at the amount of $82. Mrs. Euripidou claimed that Cyprus Airways is taking advantage of their (...)

The Italian Competition Authority accepts commitments offered by the incumbent railway undertaking and closes proceeding for abuse of dominance in the rail sector (Rail Traction Company / Rete Ferroviaria italiana-Ferrovie dello stato)
Municipality of Cagliari
168 contributions 134337 visites
By a recent decision, the Italian Competition Authority (ICA) accepted and made binding a set of commitments proposed by Ferrovie dello stato (FS) and its wholly owned subsidiary Rete Ferroviaria italiana (RFI), the Italian incumbent railway undertaking and the manager of the national rail (...)

The Budapest Court of Appeal overturns abuse decision in the telecommunications sector (Invitel)
Van Bael & Bellis (Brussels)
Belgium 191 contributions 67082 visits
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Practising Law Institute (New York)
United States 93 contributions 32000 visits
By decision of 12 November 2008, the Budapest Court of Appeal confirmed that the Hungarian Competition Authority (GVH) erred by finding that communications company Invitel abused its dominant position in a 2006 decision. The GVH’s decision found that Invitel was abusing its position by (...)

The German Federal Court of Justice holds that discrimination between own stores and franchisees is not abusive (Praktiker)
Blomstein (Berlin)
Germany 16 contributions 43994 visits
Background Praktiker, one of the leading DIY groups in Germany and Europe, pursues a dual distribution strategy via company owned stores and (few) franchises. The franchise contracts foresaw an exclusive sourcing obligation pursuant to which the franchisees had to source their entire demand (...)

The Italian Competition Authority accepts the commitments submitted by motorway companies in a proceeding relating to alleged anticompetitive agreements and abuse of dominant position in the roadside assistance market (ANAS / Società Strada dei Parchi / Società Autostrada Tirrenica)
Ashurst (Brussels)
Belgique 45 contributions 46226 visites
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Legance - Studio Legale (Rome)
Italie 21 contributions 31238 visites
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Iliad (Milano)
France 9 contributions 14415 visits
Background On 20 September 2007, the ICA opened a proceeding regarding car assistance services provided in Italy on motorways, alleging that a) the motorways companies had breached Article 3 of Law 287/90 (national provision similar to art. 82 EC) and b) the roadside assistance providers, (...)

The Lithuanian Competition Council ends art. 82 EC investigation with another fine being imposed on the State-controlled operator of the national airport for restricting access to the airport facilities (Vilnius Airport - Naftelf)
Lithuanian Competition Authority (Vilnius)
Lithuania 28 contributions 102948 visits
On 6 November 2008 the Lithuanian Competition Council imposed a fine of LTL 171,000 (approx. EUR 49,525) on the State Enterprise Tarptautinis Vilniaus oro uostas (TVOU) for infringing Article 82 EC and its national equivalent by way of preventing entry to its potential competitor in the (...)

The Slovak Competition Authority fines a dominant telecommunication operator for margin squeeze (Slovak Telekom)
Van Bael & Bellis (Brussels)
Belgium 191 contributions 67082 visits
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Practising Law Institute (New York)
United States 93 contributions 32000 visits
On 3 November 2008, the Slovak Antimonopoly Office (the “Antimonopoly Office”) imposed a fine of 73 million SKK (approximately € 2.4 million) on Slovak Telekom, the dominant telecommunications network owner and operator, for margin squeezing. Slovak Telekom operates the telecommunications (...)

Mergers

 The Finnish Competition Authority grants clearance subject to remedies to the acquisition of a Nordic premium pay-TV operator after extended second phase investigation (TV 4 / C More)
Roschier (Helsinki)
Finland 11 contributions 8958 visits
On 27 November 2007 following a twice extended second phase investigation period, the Finnish Competition Authority (“FCA”) conditionally approved the acquisition of C More Group AB (“CMore”) by TV 4 AB (“TV4”), owned by Bonnier Media Group (“Bonnier”) from the German media group ProSiebenSat1 (...)

The EU Commission closes its investigation following the parties’ withdrawal of a proposed acquisition in the mining industry (BHP Billiton / Rio Tinto)
JG Associates (Brussels)
193 contributions 64218 visites
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European Commission - DG COMP (Brussels)
Belgique 148 contributions 50775 visites
"Mergers: main developments between 1 September and 31 December 2008"* On 26 November the Commission announced that it intended to close its investigation into BHP Billiton‘s proposed acquisition of Rio Tinto following BHP Billiton‘s announcement that it had abandoned the deal and had (...)

The Higher Regional Court of Dusseldorf upholds prohibition decision of the FCO in the hearing aid sector (Phonak / GN ReSound)
Van Bael & Bellis (Brussels)
Belgium 227 contributions 72696 visits
In a recently published decision of 26 November 2008, the Higher Regional Court of Düsseldorf affirmed the decision of the Federal Cartel Office (“FCO”) prohibiting the Swiss hearing aid manufacturer Phonak Holding AG (“Phonak”) from acquiring its Danish competitor GN Store Nord AS(“GN (...)

The EU Commission clears a merger between Hungarian and Austrian companies both active in the provision of rail freight transport and freight forwarding services (Rail Cargo Austria / MÁV Cargo)
JG Associates (Brussels)
193 contributions 64218 visites
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European Commission - DG COMP (Brussels)
Belgique 148 contributions 50775 visites
Mergers: main developments between 1 September and 31 December 2008* On 25 November the Commission cleared the proposed acquisition of MÁV Cargo of Hungary by the Austrian company Rail Cargo Austria (RCA), both active in the provision of rail freight transport and freight forwarding (...)

The Portuguese Competition Authority conditionally clears a merger in Phase II in the pay-TV market (TV Cabo / Bragatel / Pluricanal Leiria / Pluricanal Santarém)
Cuatrecasas (Lisbon)
Portugal 11 contributions 23431 visits
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Cuatrecasas (Lisbon)
Portugal 2 contributions 2579 visits
On 21 November 2008, the Competition Authority decided not to oppose a concentration in the subscription television market subject to conditions and obligations, whereby CATVP - TV Cabo Portugal, S.A. (“TV Cabo”) acquired sole control over three competitors: Bragatel - Companhia de Televisão (...)

The Portuguese Competition Authority conditionally clears a merger in Phase I in the pay-TV market (TV Cabo / TVTel)
Cuatrecasas (Lisbon)
Portugal 11 contributions 23431 visits
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Cuatrecasas (Lisbon)
Portugal 2 contributions 2579 visits
On 21 November 2008, the Competition Authority decided not to oppose a concentration in the subscription television market subject to conditions and obligations, consisting in the acquisition of sole control by CATVP - TV Cabo Portugal over TVTel - Comunicações, S.A.. The transaction caused (...)

The Chinese Ministry of Commerce conditionally approves its first merger under the control regime (InBev / AB)
Covington & Burling (Washington)
United States 21 contributions 1784 visits
In the first major test of China’s new merger control regime, the Ministry of Commerce of the People’s Republic of China (“MOFCOM”) has published its decision approving the proposed InBev/Anheuser-Busch merger (see translation set forth below), and released on its website an interview with (...)

The Chinese Antitrust Authority provides guidance for merger review process under the new anti-monopoly law
Jones Day (Shanghai)
China 51 contributions 24137 visits
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Jones Day (Beijing)
China 44 contributions 21116 visits
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Winston & Strawn (Washington)
United States 27 contributions 23399 visits
The China Ministry of Commerce (« MOFCOM »), which serves as the antitrust authority in charge of merger control under the new Anti-Monopoly Law (« AML »)[[ See Article 10 of the AML provides that the Anti-Monopoly Enforcement Authority ("AMEA"), designated by the State Council, is responsible (...)

The Chinese MOFCOM conditionally approves acquisition by the global Belgian beer producer of the US leading brewer (InBev / Anheuser-Busch)
Kastell (Stockholm)
Sweden 8 contributions 5448 visits
On November 18 2008, the Anti-Monopoly Bureau of the Ministry of Commerce (MOFCOM) approved the acquisition of U.S.-based Anheuser-Busch Companies Inc. by Belgian InBev NV/SA. The approval was, however, granted subject to conditions. This is the first such decision to be made public since the (...)

The German merger control regime’s main features in light of recent developments
Freshfields Bruckhaus Deringer (Berlin)
Germany 31 contributions 121307 visits
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Freshfields Bruckhaus Deringer (Berlin)
Germany 17 contributions 71286 visits
In over 35 years of its existence, the German merger control regime has gained a strong reputation all over the world due to its influential role in post-war Europe, high rate of enforcement and the important place held by the competition authority in charge of its enforcement, the (...)

The French Minister of Economics sanctions for the second time companies for a breach of merger remedies (TF1 / AB Groupe)
Freshfields Bruckhaus Deringer (Paris)
France 77 contributions 298398 visites
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Fiducial Legal by Lamy
France 17 contributions 63952 visits
By a departmental order on August 21, 2007, the Minister, for the first time sanctioned a company with a €100,000 fine for breach of merger remedies subscribed for the realization of the operation of concentration. In just over a year, by a departmental order dated November 17, 2008, the (...)

The Higher Regional Court of Dusseldorf widens the scope of application of merger control law while prohibiting a merger in the copper continuous casting industry sector (A-TEC / Norddeutsche Affinerie)
Gleiss Lutz (Munich)
Germany 28 contributions 49245 visits
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Milbank (Munich)
Germany 28 contributions 49245 visits
On 12 November 2008, the German Higher Regional Court of Düsseldorf approved a decision of the German Federal Cartel Office (FCO) prohibiting the proposed acquisition of a 13.75% share in a company by a competitor. The case concerned the issue of whether, according to German law, a share (...)

The German Federal Court of Justice confirms the prohibition of a merger in the electricity market (E.ON / Stadtwerke Eschwege)
University of East Anglia
United Kingdom 14 contributions 26598 visits
The German electricity market is dominated by four vertically integrated firms: E.ON, RWE, Vattenfalland EnBW exclusively able to cover both base load and peak load demand. Regional and local retailers, often municipality owned (Stadtwerke), sell electricity to final customers or other local (...)

The German Federal Court of Justice confirms the prohibition of an energy merger considering that the national market for primary sales of electricity is dominated by a duopoly (E.ON / Stadtwerke Eschwege)
Freshfields Bruckhaus Deringer (Berlin)
Germany 31 contributions 121307 visits
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Freshfields Bruckhaus Deringer (Berlin)
Germany 17 contributions 71286 visits
In a judgment of 11 November 2008, the German Federal Court of Justice (Bundesgerichtshof) (Federal Court) upheld a previous decision of the Higher Regional Court of Düsseldorf (Higher Regional Court) which had itself confirmed a decision of the Federal Cartel Office (FCO) blocking E.ON’s plan (...)

The German Federal Court confirms that a change of control must occur on a lasting basis in order to be qualified as a “concentration” but leaves open the question which actions can constitute “gun-jumping” infringements (G+J / RBA)
Freshfields Bruckhaus Deringer (Berlin)
Germany 31 contributions 121307 visits
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Freshfields Bruckhaus Deringer (Berlin)
Germany 17 contributions 71286 visits
With its judgment of 11 November 2008, the German Federal Court of Justice (Bundesgerichtshof) (Federal Court) has opened a new chapter in the never ending judicial saga relating to the German edition of the scientific magazine National Geographic, which has already found itself at the centre (...)

The Belgian Competition Council conditionally clears a merger in the telecommunication sector (Scarlet / Belgacom)
Van Bael & Bellis (Brussels)
Belgium 227 contributions 72696 visits
In a recently published decision of 8 November 2008, the Belgian Competition Council conditionally cleared the acquisition of Scarlet by Belgacom, following a phase II investigation. Belgacom, the incumbent telecommunications operator in Belgium, is active on a number of retail and wholesale (...)

The Belgian Competition Council conditionally clears a merger between alternative DSL-provider and the incumbent (Scarlet/Belgacom)
Caviar (Brussels)
Belgium 2 contributions 3463 visits
Background settings On March 6th, 2008, Belgacom NV, the former state telecom operator, notified its intended take-over of Scarlet NV, an innovative competitor on the Belgian market, to the Auditoraat of the Belgian Competition Council. On 6 May 2008, the Council decided to open a phase (...)

The US DOJ requires extensive divestitures and changes the terms of licensing agreements before approving a merger in the market for genetically engineered cotton seeds (Monsanto / Delta / Pine Land)
Office of the Texas State Attorney General (Austin)
United States 1 contribution 383 visits
The Monsanto Company has nearly completed its acquisition of Delta and Pine Land, uniting the two largest companies in the domestic, genetically- modified cotton seed industry. Subject to a Hart-Scott- Rodino review, the parties worked with the United States Department of Justice (...)

The US DoJ imposes non-traditional remedies before clearing a merger to address the unique reliance on intellectual property and innovation required in the market for genetically engineered cotton seeds (Monsanto / Delta / Pine Land)
Morrison & Foerster (Washington)
United States 1 contribution 312 visits
A recent settlement in a biotech merger case may signal a greater willingness by DOJ to accept remedy provisions it previously would have rejected, especially to resolve vertical issues in industries heavily dependent on intellectual property and innovation. Rather than challenge Monsanto’s (...)

The German Competition Authority prohibits an acquisition in the locking manufacturer sector (SimonsVoss / Assa Abloy)
Van Bael & Bellis (Brussels)
Belgium 227 contributions 72696 visits
In a phase II decision of 5 November 2008, the German Federal Cartel Office (FCO) prohibited the acquisition of SimonsVoss AG by Assa Abloy AB. SimonsVoss is a German manufacturer of electronic lock cylinders. Assa Abloy is a Swedish company active worldwide in mechanical locking systems, (...)

State Aid

 The EU Commission publishes an autumn update to the State aid scoreboard
Van Bael & Bellis (Brussels)
Belgium 155 contributions 35049 visits
On 17 November 2008, the Commission published the autumn update of its State aid Scoreboard. The update indicates that the objective of better targeted aid is well on track given that 80% of the total amount of aid is nowadays granted to horizontal objectives, compared to 50% in the middle of (...)

The Finnish Administrative Supreme Court sends a case back to the Administrative Court as it had not ruled on the question of whether the arrangement constituted State aid
Dittmar & Indrenius (Helsinki)
Finland 10 contributions 31092 visits
Factual Background The City Council of Kouvola had resolved to approve the purchase offer of 500,000.00 euros on a parcel of land. The purchase offer amounted to the equivalent of the price announced by the City of Kouvola, but after the approval of the offer, two other offers with higher (...)

The UK Lands Tribunal rules that the application of a different valuation method between undertakings is not evidence and to assess the value of a telecommunications network has resulted in an advantage likely to confer unlawful State aid (Kingston / British Telecom)
UK Competition & Markets Authority - CMA (London)
United Kingdom 5 contributions 10053 visits
The situation of BT and the assessment of the valuation of its fibre optic hereditament is not comparable to that of Vtesse and therefore it is impossible to say whether BT has been given any unfair advantage or more favourable treatment contrary to the broad principles of Article 87 EC. (...)

The Lithuanian Administrative Supreme Court states that a municipality is not entitled to grant interest-free credits without applying State aid rules (Kedainiai District Municipality Council)
Cobalt Legal (Vilnius)
Lithuania 25 contributions 18970 visits
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Valiunas Ellex (Vilnius)
Lithuania 11 contributions 16519 visits
Factual background On 13 October 2000 the municipality council adopted decision No 187 “Concerning the Establishment of a Fund to Support Producers of Agriculture Products”. The decision provided for granting of interest-free credits to natural persons, undertakings, cooperatives, village (...)

The French State Council delineates an administrative judge’s jurisdiction over governmental decisions when applying Art. 88.3 EC (Comité national des interprofessions des vins à appellations d’origine)
Lenoir Avocats (Paris)
17 contributions 93879 visits
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Orrick, Herrington & Sutcliffe (Paris)
France 19 contributions 26401 visits
This is the first time that the French Supreme Administrative Court has had to decide on an application for annulment for refusing to report State measures which may qualify as state aid. The case at stake provided the French Supreme Administrative Court with an opportunity to specify the (...)

The French State Council deals with alleged State aid claimed by an interprofessional organisation requesting the annulment of a ministerial decision (Comité National des Interprofessions des Vins à Appelations)
Sheppard Mullin (Brussels)
France 400 contributions 677319 visites
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European Court of Justice (Luxembourg)
France 65 contributions 116895 visits
Factual Background Twelve interprofessional organisations lodged a series of actions in annulment against a ministerial decision before the administrative jurisdictions, rejecting their demand for notification to the European Commission of a provision of the French rural code (Code rural) (...)

The Swedish Administrative Court rules that a sale of real estate is not made below market price and thus can not be considered as State aid (Per Gillberg)
Djungo (Stockholm)
Sweden 22 contributions 54390 visits
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General Court of the European Union (Luxembourg)
Luxembourg 16 contributions 31841 visits
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Öberg & Associés (Stockholm)
Sweden 15 contributions 29512 visits
Factual Background On March 31, 2008, the municipal council of Årjänge decided to make a trade-off sale whereby it sold the real estate Årjäng Slätten 7 to Tom Hedefur, and in exchange the municipality bought the real estate Årjäng Åsen 1 from him. Local resident Per Gillberg appealed the (...)

A Swedish Administrative Court rules that a sale of a hotel to former leaseholder was made below market price and annuls the decision but withou considering the EC State aid point of view (Petra Nyström)
Djungo (Stockholm)
Sweden 22 contributions 54390 visits
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General Court of the European Union (Luxembourg)
Luxembourg 16 contributions 31841 visits
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Öberg & Associés (Stockholm)
Sweden 15 contributions 29512 visits
Factual Background On June 17, 2008, the municipal council of Kristinehamn decided to sell the city hotel in Kristinehamn for 3 million SEK to the leaseholder of the hotel. Petra Nyström, a local resident, appealed the decision to the Administrative Court arguing, inter alia, that the (...)

The German Federal Court of Justice holds that the authority granting State aid must advise the guarantor of the aid recipient when allocating non notified aid and that, if the granting authority has omitted to do so, the guarantor is entitled to oppose an action for damages against the recovery (Landes Brandenburg)
Delegation of the European Union to the United States (Washington D.C.)
United States 10 contributions 16531 visits
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European Commission
Belgique 28 contributions 44967 visites
Factual background On 1 December 2000, the applicant granted D. GmbH a subsidy of over € 1 million for the development of business premises in the greater Berlin area. The general collateral clauses in the official letter granting the aid stated in which cases the aid might have to be repaid (...)

The EU Commission intends to use State aid to offset higher costs resulting from the EU’s emission trading scheme
Van Bael & Bellis (Brussels)
Belgium 155 contributions 35049 visits
According to a yet unpublished document that was presented to Member States by the French Presidency at the end of November, the Commission is preparing new criteria for assessing State aid in energy-intensive sectors such as chemicals and aluminium production. The intended measures are to be (...)

Procedures

 The EU Commission presents its preliminary findings on its inquiry into competition in the pharmaceutical sector
Court of First Instance of Namur (Namur)
Belgium 224 contributions 47561 visits
On 26 September 2008, the European Commission announced that it will present its preliminary findings on its inquiry into competition in the pharmaceuticals sector at a conference on 28 November 2008. The final results are expected in the spring of 2009. The sector inquiry, which was launched (...)

A French Court rules on access to documents in the framework of the pharmaceutical supply quota case
Court of First Instance of Namur (Namur)
Belgium 224 contributions 47561 visits
Both the French Supreme Court and the Paris Court of Appeal have recently ruled on the issue of access to documents in the specific context of the commitments procedure. On 26 November 2008, in three distinct judgments, the Paris Court of Appeal annulled several decisions of July 2007 and (...)

The Spanish Competition Authority consults on its draft fining guidelines
Court of First Instance of Namur (Namur)
Belgium 224 contributions 47561 visits
On 21 November 2008, the Spanish Competition Authority published for consultation its draft Fining Guidelines for infringements of the competition rules (the “draft Fining Guidelines”). This public consultation will be open until 17 December 2008. The draft Fining Guidelines state that when (...)

The England & Wales Court of Appeal’s judgment in the Marine Hoses cartel shows the interplay between UK criminal investigation and US plea agreement (Whittle / Allison & Brammar)
UK Competition & Markets Authority - CMA (London)
United Kingdom 4 contributions 5753 visits
The Marine Hoses Cartel has been a test case on several grounds: parallel and coordinated dawn raids by the European Commission, the OFT and the US DoJ; first criminal prosecution to be brought under the new Criminal Cartel Offence in the UK; use of DVD covertly recording of a cartel meeting (...)

The EU Commission adopts its 2009 legislative and work programme
Court of First Instance of Namur (Namur)
Belgium 224 contributions 47561 visits
On 5 November 2008, the European Commission adopted its 2009 legislative and work programme, announcing the main initiatives it intends to pursue in 2009. These initiatives include a review of the 1995 Notice on cooperation between national courts and the Commission in the State aid field, a (...)

The French Supreme Court rules on access to documents in the framework of the commitments procedure (Canal 9)
Court of First Instance of Namur (Namur)
Belgium 224 contributions 47561 visits
Both the French Supreme Court and the Paris Court of Appeal have recently ruled on the issue of access to documents in the specific context of the commitments procedure. On 4 November 2008, the French Supreme Court partially annulled a judgment of the Court of Appeal, on the ground that the (...)

The French Supreme Court rules that parties to a commitments procedure must have access to all documents on which the case-handler has relied and to all documents submitted to the Competition Authority (Canal 9 / Les Indépendants)
Vogel & Vogel (Paris)
France 94 contributions 119545 visits
The highest commercial court in France has for the first time addressed the question of procedural safeguards for undertakings concerned during the commitments procedure laid down in article L. 464-2, I of the Commercial Code. The aim of the procedure is “to ensure that the undertaking ceases (...)

The Swedish Government publishes a new Competition Act which further harmonises with EU competition rules and introduces a number of new features to enhance cartel enforcement
Delphi (Stockholm)
Sweden 6 contributions 12362 visits
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Stockholm University
Sweden 6 contributions 8255 visits
A new Swedish Competition Act entered into force on 1 November 2008. The new legislation means further harmonisation with EC competition rules and it also introduces a number of new features in order to enhance cartel enforcement. One of the new features is the introduction of disqualification (...)

Regulatory

 The EU Commission presents its preliminary results concerning the pharmaceutical sector inquiry raising competition concerns
European Commission - DG Employment, Social Affairs and Inclusion (Brussels)
Belgium 3 contributions 1322 visits
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EU Delegation to the OECD and UNESCO (Paris)
France 2 contributions 843 visits
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European Commission - DG COMP (Brussels)
Belgium 5 contributions 1871 visits
"Preliminary results of Commission pharmaceutical sector inquiry raise competition concerns"* On 28 November 2008, the Commission presented the preliminary findings of its sector inquiry into pharmaceuticals. The report shows that originator companies engage in practices that can contribute (...)

The EU Commission publishes its preliminary report on its competition enquiry into the pharmaceutical sector
Court of First Instance of Namur (Namur)
Belgium 224 contributions 47561 visits
The relationship between competition law and intellectual property rights has been the subject of much debate during the European Commission’s on-going pharmaceutical sector enquiry. In particular, there has been some concern that competition law could encroach on the complex rules governing (...)

The Spanish national competition commission publishes a number of reports on the telecoms market
Hogan Lovells (Madrid)
Spain 47 contributions 92451 visits
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Allianz (Brussels)
Belgium 23 contributions 39696 visits
The Spanish National Competition Commission (Comisión Nacional de la Competencia,hereinafter,"the CNC") published on 26 November 2008 a number of reports analysing the market definition and the competitive structure of the networks and electronic communication services markets in Spain ("the (...)

The Hellenic Competition Commission imposes measures on the petroleum industry aimed at restoring effective competition (Greek Petroleum and Motor Oil / Hellas / Corinth Refineries)
University of East Anglia
United Kingdom 29 contributions 26535 visits
Background On 27 August 2008, the Hellenic Competition Commission (HCC) launched a series of public consultations on proposed measures which would restore effective competition in the Greek Petroleum Industry. A summary of views submitted during the consultation process was published on 13 (...)

The French Telecom Regulator holds that the incumbent cannot require to be provided with information on the wholesale access offer of the cable operator (France Télécom/Numéricable)
French Competition Authority (Paris)
France 9 contributions 22111 visits
Considering that the criterion of indispensability to achieve the objectives of the regulation was not satisfied, the French regulator rejected the France Télécom’s complaint based on the refusal of the cable operator to provide it with information on its wholesale access offer. The French (...)