November 2016

Anticompetitive practices

The Danish Competition Council considers that agreement between service providers on their subscription price for service on natural gas boilers is anticompetitive (HMN)
Danish Competition and Consumer Authority (Copenhagen)
Denmark: The Danish Competition Council finds that agreement between service providers on their subscription price for service on natural gas boilers is illegal.* On November 30 2016, The Danish Competition Council (“DCC”) found that HMN Naturgas I/S (“HMN”), DEBRA – Energibranchen (“DEBRA”), (...)

The Romanian Competition Council fines five milk producers for rigging (Albalact)
Romanian Competition Council (Bucharest)
The Competition Council had sanctioned five milk producer companies for rigging the bids* The Competition Council had sanctioned five milk producer companies with fines of 8,591,540 lei (approx. 1,9 milion Euro) for rigging the bids organized in 2010-2011 in Giurgiu, Ialomita and Dolj counties (...)

The Hong Kong Competition Commission orders two professional associations to modify certain provisions in their respective codes of conduct (HKIA / HKIP)
Hong Kong Competition Commission
Competition Commission calls upon two professional associations to rectify practices which raise competition concerns* The Competition Commission (Commission) today (28 November 2016) published an advisory bulletin calling upon two professional associations, namely, the Hong Kong Institute of (...)

The Brazilian Administrative Council For Economic Defense’s tribunal provides further guidance for the assessment of international cartels, indicating when they are considered able to produce effects in Brazil
Mattos Filho Veiga Filho Marrey Jr & Quiroga (New York)
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Mattos Filho, Veiga Filho, Marrey Jr. & Quiroga (Sao Paulo)
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Mattos Filho, Veiga Filho, Marrey Jr. & Quiroga (Sao Paulo)
CADE’s Tribunal provided, during judgment sessions held between August and November of 2016, further guidance for the assessment of international cartels, indicating when they are considered able to produce effects in Brazil, in breach of Brazilian competition law. These decisions were issued (...)

The Milan Court of Appeal welcomes the counterfactual scenario in a follow-on action for damages (Brennercom / Telecom Italia)
NCTM - Studio Legale Associato (Milan)
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LUISS Guido Carli University (Rome)
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LUISS Guido Carli University (Rome)
One of the main issues involving the implementation of the Damages Directive concerns the quantification of damages claimed by the victims of anticompetitive conducts before national judges in follow-on actions. Indeed, the directive grants the right to full compensation to the victims of (...)

The French Competition Authority confirms unannounced inspections in the sector of energy services and energy supply
French Competition Authority (Paris)
The General Rapporteur of the Autorité de la concurrence confirms that unannounced inspections were carried out on 22 November in the sector of energy services and energy supply* On 22 November 2016, following information that has appeared in the press - which does not come from the Autorité (...)

The Belgian Competition Authority carries inspections at several undertakings active in the wholesale distribution of pharmaceutical and para-pharmaceuticals products to pharmacies
Belgian Competition Authority (Brussels)
The Belgian Competition Authority confirms inspections at several companies active in the wholesale distribution of pharmaceutical and para-pharmaceuticals products to pharmacies* The Investigation and Prosecution Service of the Belgian Competition Authority (hereafter “BCA”) confirms that the (...)

Advocate General Kokott delivers her opinion on an appeal lodged before the EU Court of Justice against a judgment upholding the Commission’s decision finding an illegal price-fixing cartel (Pacific Fruit)
Van Bael & Bellis (Brussels)
Summary On 17 November 2016, Advocate General (“AG”) Kokott delivered her opinion on an appeal lodged before the European Court of Justice (“ECJ”) by Pacific Fruit (and its parent companies) against a judgment of the General Court (“GC”) upholding the European Commission’s decision finding an (...)

The Turkish Competition Board publishes its reasoned decision on the investigation conducted against upon allegations of resale price fixing on the auto gas market (Aygaz)
ELIG Gürkaynak Attorneys-at-Law (Istanbul)
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ELIG Gürkaynak Attorneys-at-Law (Istanbul)
This case note analyses the Turkish Competition Board’s (“Board”) Aygaz decision dated 16.11.2016 with No. 16-39/659-294. The Board assessed allegations that Aygaz and its wholly-owned subsidiary, Mogaz A.Ş. (“Mogaz”), had engaged in resale price maintenance (“RPM”). Background The Board initiated (...)

The Indian Competition Appellate Tribunal (COMPAT) rejects the Indian Competition Authority’s investigation conclusion due to failure to address a significant part the plaintiff’s original suit (Air Cargo Agents Association of India / IATA International Air Transport Association)
Vaish Associates, Advocates (New Delhi)
Competition Appellate Tribunal (COMPAT) quashes CCI order and directs fresh investigation into alleged anti-competitive practices of International Air Transport Association (IATA)* COMPAT, by its order dated November 15, 2016, has set-aside the order of Competition Commission of India (CCI) (...)

The Indian Competition Appellate Tribunal (COMPAT) reverses the Indian Competition Authority’s fine of pharmaceutical companies in a bid rigging case (GlaxoSmithKline / Sanofi)
Vaish Associates, Advocates (New Delhi)
COMPAT sets aside penalty against GSK Pharmaceuticals Ltd. (GSK) and Sanofi Ltd. (Sanofi) for alleged bid-rigging in procurement of meningitis vaccine for Haj and Umrah pilgrims by Ministry of Health and Family Welfare* COMPAT by its order dated November 8, 2016, has set aside the penalty (...)

The Chinese SAIC fines three payment encryption device suppliers for market partitioning
Hogan Lovells (Beijing)
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Hogan Lovells (Beijing)
Chinese payment encryption device suppliers fined for participation in government-orchestrated cartel* On 4 November 2016, the State Administration for Industry and Commerce (“SAIC“) – one of China’s antitrust authorities – published on its website three decisions, whereby three payment encryption (...)

Unilateral Practices

The Paris Commercial Court declares void price and availability parity clauses formerly implemented by a hotel online booking company (Booking.com)
DLA Piper (Paris)
In a ruling issued on November 29th, 2016, the Paris commercial court (hereafter the “court”) declared void several provisions, including price and availability parity clauses previously in force, of Booking.com’s general terms of service governing its B2B relationships with hotels. Following an (...)

The OECD holds a roundtable on price discrimination
OECD - Competition Division
In recent years the scope for near perfect price discrimination, particularly in the digital economy, appears to have grown. This raises a question over how those jurisdictions in which exploitative price discrimination is an offence will respond. In contrast, the risk of price discrimination (...)

The Indian Competition Appellate Tribunal (COMPAT) reverses the Indian Competition Authority’s decision and orders an investigation into national gas supplier for alleged unfair contractual terms (GIPCL Gujarat Industries Power Company / GAIL Gas Authority of India)
Vaish Associates, Advocates (New Delhi)
COMPAT orders investigation against Gas Authority of India Limited (GAIL) for abuse of dominance* COMPAT by order dated November 28, 2016 has set aside the order of CCI refusing investigation against GAIL for allegedly incorporating unfair terms and conditions in its gas supply agreements with (...)

The Romanian High Court of Cassation and Justice confirms the right to compensation of a company that suffered damages following the imposition of discriminatory conditions by the incumbent postal service provider in relationship with its customers (Mailers Serv / Compania Nationala Posta Romana)
Romanian Competition Council (Bucharest)
On 28.7.2011, Mailers Serv S.R.L. (in insolvency) brought an action for damages before the Tribunalul Bucuresti, Sectia Civila against CNPR claiming the difference of the discounts that would have received as a customer of CNPR if the latter would have applied the same conditions as to the (...)

The Belgian Competition Authority rejects a request to suspend an acquisition that was not subject to prior notification in the brewery sector (Alken-Maes / Boatels / AB InBev)
Van Bael & Bellis (Brussels)
On 21 November 2016, the Competition College of the Belgian Competition Authority (“BCA”) rejected a request of Brouwerijen Alken-Maes (“Alken-Maes”) to suspend the acquisition of Brouwerij Bosteels (“Bosteels”) by Anheuser-Busch InBev NV (“AB InBev”). AB InBev’s takeover of Bosteels was not subject (...)

The French Competition Authority issues its opinion on the access to information on the prices of lands for development
French Competition Authority (Paris)
Land available for development* The Autorité de la concurrence recommends providing professionals and private individuals with improved access to information on the prices of lands for development. It welcomes the recent measures taken to improve cost transparency within the sector and (...)

The EU Commission launches an investigation into a Czech railway incumbent for possible abuse of dominance (České dráhy)
DG COMP (Brussels)
Antitrust: Commission investigates practices of Czech railway incumbent České dráhy in passenger transport* The European Commission has opened an investigation to assess whether the Czech railway incumbent České dráhy, a.s. (ČD) charged prices below costs with the aim of shutting out competition in (...)

The Indian Competition Authority dismisses allegations of abuse of dominance against a laptop manufacturer (S. K. Mittal / HP)
Vaish Associates, Advocates (New Delhi)
CCI dismisses allegation of abuse of dominance against HP* CCI, by its order dated November 10, 2016, has dismissed allegation of abuse of dominance against HP for defective products and spurious spare parts. In the Information filed by an individual, Dr. S.K. Mittal, who was essentially (...)

The Indian Competition Appellate Tribunal (COMPAT) reverses the Indian Competition Authority’s decision for a second time and orders an investigation (K Sera Sera Digital Cinema / Digital Cinema Initiatives)
Vaish Associates, Advocates (New Delhi)
COMPAT orders investigation against producers of Hollywood movies* COMPAT by its order dated November 9, 2016 has ordered investigation against 6 producers of Hollywood films for the allegedly forcing a technology, called D-Cinema technology, for providing cinema screening under the auspices (...)

The Belgian Competition Authority closes its investigation regarding a real estate website due to remedies offered by the undertaking (Immoweb)
Belgian Competition Authority (Brussels)
The Investigation and Prosecution Service of the Belgian Competition Authority has closed its investigation against Immoweb due to commitments offered by Immoweb* On January 30 2015, the Investigation and Prosecution Service opened an ex officio investigation against Immoweb, the company (...)

Mergers

The Belgian Competition Authority rejects an application for interim measures concerning a merger in the brewery market (Alken-Maes / AB InBev / Bosteels)
Belgian Competition Authority (Brussels)
The Competition College of the BCA has rejected the application for interim measures of Alken-Maes versus AB InBev regarding the acquisition of Bosteels* The Competition College of the Belgian Competition Authority has rejected on 21 November 2016 the application for interim measures of (...)

The EU Commission clears a merger subject to remedies in the pharmaceutical sector (Abbott Laboratories / St Jude Medical)
DG COMP (Brussels)
Mergers: Commission approves acquisition of St Jude Medical by Abbott Laboratories, subject to conditions* The European Commission has approved under the EU Merger Regulation the proposed acquisition of St Jude Medical by Abbott Laboratories, both US based companies that develop and market (...)

The Belgian Competition Authority clears a merger subject to remedies in the sector of newspapers distribution and delivery of small parcels (AMP / LS Distribution Benelux / bpost)
Belgian Competition Authority (Brussels)
The Competition College of the BCA has approved conditionally the acquisition of AMP and LS Distribution Benelux by bpost* The Competition College of the Belgian Competition Authority has on 8 November 2016 conditionally approved the acquisition of AMP NV and LS Distribution Benelux NV by (...)

The EU Commission clears a merger subject to remedies on the animal health market (Boehringer Ingelheim / Sanofi)
DG COMP (Brussels)
Mergers: Commission approves acquisition of Sanofi’s animal health business Merial by Boehringer Ingelheim, subject to conditions* The European Commission has approved under the EU Merger Regulation the acquisition of the animal health business of Sanofi (Merial) of France by Boehringer (...)

The French Competition Authority fines a major French telecommunications operator for gun-jumping (Altice)
Jones Day (Brussels)
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Jones Day (Paris)
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Jones Day (Paris)
This week, the French Competition Authority ("FCA") imposed a EUR 80 million fine on the Altice Group, a major French telecommunications operator, for implementing two transactions before approval by the FCA (so-called "gun jumping"). The full text is not yet available, but this decision (...)

The French Competition Authority publishes its long awaited first decision sanctioning gun jumping practices (Altice / SFR / Virgin)
DLA Piper (Paris)
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Frieh Associés (Paris)
In its decision dated 8 November 2016, the French Competition Authority (FCA) describes with much detail its appraisal of a gun jumping infringement. Among the many lessons arising from such decision, one is clearly for future redactors of corporate documentation, another is for top management (...)

The French Competition Authority fines a group and its recently-acquired subsidiaries 80 M € for having coordinated their business strategies and commercial behaviour prior to merger control clearance (Altice)
Hogan Lovells (Paris)
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Hogan Lovells (Paris)
This article was first published in Concurrences Review N° 2-2017, Art. N° 83875, pp. 231-239 I. Introduction In November 2016, the French Competition Authority (“FCA”) fined French-based Altice/Numericable group and its recently-acquired telecom subsidiaries SFR and Virgin Mobile France for (...)

The French Competition Authority fines a multinational telecoms company for the premature completion of two mergers (Altice)
French Competition Authority (Paris)
The Autorité de la concurrence fines the Altice group 80 million euros for the premature completion of two mergers notified in 2014* The Autorité de la concurrence issued a decision today to fine jointly Altice Luxembourg and SFR Group 80 million euros, in application of Section II of Article (...)

The French Competition Authority fines companies for gun-jumping (Altice)
Van Bael & Bellis (Brussels)
On 8 November 2016, the French Competition Authority (FCA) fined Altice (trading as Numericable) and SFR Group € 80 million for the coordination of commercial behaviour prior to obtaining French merger control clearance. The FCA decision is ground-breaking as it imposes the highest fine ever in (...)

State Aid

The EU Court of Justice rules in two State aid cases regarding the pension scheme of the French incumbent telecom company (Orange)
College of Europe (Bruges)
Pensions, public statements and private investors* Introduction This article reviews two court judgments both of which concern Orange, the French incumbent telecoms operator. The first judgment finds that compensation for the extra costs of pensions of Orange employees with civil service (...)

The EU Court of Justice confirms the General Court judgment annulling the Commission’s decision the considered that public support statements and credit line offers constituted incompatible State aids by applying the test of the prudent private investor (Orange)
Van Bael & Bellis (Brussels)
On 30 November 2016, the European Court of Justice (“ECJ”) issued its second judgment in the case concerning public statements made by the French authorities in support of France Télécom (“FT” – now Orange) and the offering of a shareholder loan to FT. In 2002, FT, a public limited company, was (...)

The EU Court of Justice rejects an appeal concerning a Spanish aid measure in favour of a public broadcaster, finding that the amount of aid granted did not depend solely on the amount of tax paid by the appellants (DTS)
College of Europe (Bruges)
* Article published on StateAidHub: http://stateaidhub.eu, republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

The EU Commission finds that a Hungarian progressive tax on publishers of adverts is unlawful State aid which must be recovered (Hungarian advertisement tax)
College of Europe (Bruges)
Article published on StateAidHub: http://stateaidhub.eu, republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

Procedures

The Supreme People’s Court of China dismisses retrial application of alleged abuses of market dominance (Mr Tong / Shanghai branch of China Mobile)
Hogan Lovells (Beijing)
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University of Melbourne
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China Competition Bulletin (Beijing)
On 28 November 2016, the Supreme People’s Court (SPC) dismissed a petition for retrial brought by Mr Tong Hua against the Shanghai branch of China Mobile for its alleged abuse of market dominance. This case had already been before the Shanghai IntermediatePeople’s Court twice and the Shanghai (...)

Regulatory

The German Competition Authority issues a joint report on the main developments in the German electricity and gas markets in 2015
German Competition Authority (Bonn)
Energy Monitoring Report 2016 published by the Bundesnetzagentur and the Bundeskartellamt* The Bundesnetzagentur and the Bundeskartellamt today published their joint Monitoring Report on the main developments in the German electricity and gas markets in 2015. Large variety of suppliers on the (...)

The OECD holds a roundtable on Big data: Bringing competition policy to the digital era
OECD - Competition Division
Executive summary, by the Secretariat * The 126th meeting of the Competition Committee held a Hearing on 29 November 2016 to discuss Big Data and the challenges of adapting competition policy to the digital economy. Considering the background note prepared by the OECD Secretariat with the (...)

The OECD holds a roundtable on competition and innovation in land transport
OECD - Competition Division
Executive Summary, by the Secretariat* Considering the discussion at the roundtable held by Working Party No.2 on 28 November 2016, the delegates’ submissions, the panellists’ presentations and the Secretariat’s background paper, several points are noted: 1. As a result of regulatory and (...)

The OECD holds a roundtable on geographic market definition across national borders
OECD - Competition Division
Executive summary, by the Secretariat* Working Party No. 3 held a roundtable discussion on 28 November 2016 to discuss geographic market definition across national borders. Considering the roundtable discussion, the delegates’ written contributions, presentations from the expert panellists and (...)

Public sector

The US FTC and the DOJ publish for public comment proposed Antitrust Guidelines for International Enforcement and Cooperation
Jones Day (Cleveland)
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Jones Day (Washington DC)
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Jones Day (Washington DC)
The Federal Trade Commission and the Department of Justice have published for public comment proposed Antitrust Guidelines for International Enforcement and Cooperation ("2016 Proposed Guidelines"). This would be the third iteration of international enforcement guidelines, following the (...)

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