November 2019

Anticompetitive practices

The EU Court of Justice dismisses appeals brought by three manufacturers of power cables in a cartel case (Power cables cartel)
Van Bael & Bellis (Brussels)
The Court of Justice of the European Union (the “Court of Justice”) dismissed in their entirety the appeals brought by LS Cable, Brugg Kabel and VISCAS (together with its parent company Furukawa), three manufacturers of power cables, against the judgment of the General Court which had upheld the (...)

The Mexican Competition Authority closes probe for possible collusion in the market for watt-hour meters and emphasises opportunities for improvement in the public procurement processes
Mexican Competition Authority (Mexico City)
COFECE CLOSES PROBE FOR POSSIBLE COLLUSION IN MARKET FOR WATT- HOUR METERS AND EMPHASIZES OPPORTUNITIES FOR IMPROVEMENT IN PUBLIC PROCUREMENT PROCESSES* The Federal Economic Competition Commission’s (COFECE or Commission) Board of Commissioners resolved to decree the closure of the (...)

The German Competition Authority and the Federal Network Agency publish their joint annual monitoring report on developments in the German electricity and gas markets
German Competition Authority (Bonn)
ENERGY MONITORING REPORT 2019 PUBLISHED BY THE BUNDESNETZAGENTUR AND THE BUNDESKARTELLAMT* The Bundesnetzagentur and the Bundeskartellamt have today published their joint annual monitoring report on developments in the German electricity and gas markets. At present no market dominance in (...)

The Court of Appeal of Netherlands finds a subsidiary liable for cartel damage caused by its minority shareholder that had or could have a decisive influence over it (GIS Cartel)
Maastricht University
In a decision of 26 November 2019, the Court of Appeal Arnhem-Leeuwarden deduced from the Court of Justice’s decision in Skanska that the EU concept undertaking is to be used to determine the entity which is required to provide compensation for damage caused by an infringement of Article 101 (...)

The Spanish Competition Authority fines a company for anticompetitive restrictions in contracts concluded with authorised repairers of gas boilers (Vaillant)
Van Bael & Bellis (Brussels)
On 26 November 2019, the Spanish Competition Authority (“CNMC”) imposed total fines of € 859,763 on several companies in the Vaillant Group, suppliers and repairers of gas boilers, for a breach of Article 1 of the Spanish Competition Act for anticompetitive restrictions in contracts concluded with (...)

The Federal Court of Appeals for the District of Columbia grants motion to intervene by 12 car manufacturers, supporting government on uniform federal emissions standards, following the announcement of DOJ investigation of four other carmakers (Environmental Defence / National Highway)
Richard Wolfram, Esq. (New York)
TWELVE OTHER CARMAKERS MOVE TO SUPPORT GOVERNMENT ENFORCEMENT OF UNIFORM FEDERAL STANDARDS ON EMISSIONS - WILL THE DOJ INVESTIGATE?* This article follows up on an October 15, 2019 article by the author on a reported investigation by the DOJ Antitrust Division into possible ‘collusion’ by four (...)

The German Competition Authority fines car makers for steel purchasing cartel (BMW / Daimler / Volkswagen)
Van Bael & Bellis (Brussels)
According to a press release of the German Federal Cartel Office (“FCO”) dated 21 November 2019, car manufacturers BMW, Daimler and Volkswagen were fined a total amount of approximately € 100 million for their involvement in a steel purchasing cartel between 2004 and 2013. The anticompetitive (...)

The German Competition Authority fines car manufacturers for anticompetitive practices in the purchase of steel (BMW / Daimler / Volkswagen)
German Competition Authority (Bonn)
German car manufacturers fined for anticompetitive practices in the purchase of steel* The Bundeskartellamt has imposed fines totalling around 100 million euros on Bayerische Motoren Werke AG, Daimler AG and Volkswagen AG for anticompetitive practices in the purchase of long steel products. (...)

The China State Administration for Market Regulation publishes a draft to incentivise whistle blowing and reward measures for complaints against significant illegal conduct in the regulation field
Hogan Lovells (Beijing)
COMPETITION LAW WHISTLE-BLOWING TO PAY OFF IN CHINA ?* As the number of leniency applications is down globally and competition authorities are struggling to find alternative sources of supply for antitrust complaints, China has circulated a draft rule to financially incentivise employee (...)

The Indian Competition Commission decides that quoting identical rates in tenders to oil marketing companies does not necessarily amount to a cartel (Prathima)
Shardul Amarchand Mangaldas (New Delhi)
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Shardul Amarchand Mangaldas (New Delhi)
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Shardul Amarchand Mangaldas (New Delhi)
Continuing the long saga of cartel proceedings against LPG cylinder manufacturers accused of bid-rigging in tenders to oil marketing companies, the CCI held in a recent order that one of the opposite parties – Prathima Industries (Prathima) - had quoted identical rates to those quoted by other (...)

The Spanish Competition Authority imposes fines totalling €77 million on two national leading TV channel operators for restricting other channels’ abilities to compete for advertising revenue (Mediaset / Atresmedia)
Van Bael & Bellis (Brussels)
On 12 November 2019, the Spanish Competition Authority (“CNMC”) fined Spain’s two leading TV channel operators Mediaset and Atresmedia a total of € 77 million for imposing single-branding obligations in their agreements with television advertisers. The CNMC concluded that the two TV channel (...)

The French Competition Authority carries out unannounced inspections in the port service activities sector in the Mayotte island
French Competition Authority (Paris)
Dawn raids in Mayotte* The General Rapporteur of the Autorité de la concurrence indicates that unannounced inspections have been carried out in the port service activities sector in the Longoni port (Mayotte island). Following authorisation from the liberty and custody judge, the investigation (...)

The EU General Court reduces the fine imposed on a company involved in a car battery recycling cartel (Campine)
Van Bael & Bellis (Brussels)
On 7 November 2019, the General Court (“GC”) ruled on an appeal lodged by Campine Recycling NV (“Campine”) against the Commission’s decision fining Campine € 8,158,000 for its involvement in the Car Battery Recycling cartel. In its decision, the Commission found that Campine had agreed with others to (...)

The EU Commission opens an investigation into a possible collusion by two French retailers in a purchasing alliance (Casino Guichard-Perrachon / Les Mousquetaires)
DG COMP (Brussels)
Antitrust: Commission opens investigation into possible collusion by two French retailers in a purchasing alliance* The European Commission has opened a formal antitrust investigation to assess whether two French groups of retailers, Casino Guichard-Perrachon (known as ‘Casino’) and Les (...)

Unilateral Practices

The French Competition Authority launches a market inquiry following a game console manufacturer’s commitments proposal (Sony)
French Competition Authority (Paris)
Games consoles: The Autorité launches a market consultation* In the context of a litigation procedure opened before the Autorité, Sony offers commitments to make its licensing policy more transparent to third parties wishing to manufacture and market compatible controllers with the Playstation 4 (...)

The UK Competition Appeal Tribunal upholds the OFCOM’s fine against a company for price discrimination (Royal Mail / Whistl)
Van Bael & Bellis (Brussels)
The UK’s Competition Appeal Tribunal upholds the Ofcom’s record £50 million fine against Royal Mail for price discrimination against Whistl, a competitor in the market for the processing of bulk mail.On 12 November 2019, the UK’s Competition Appeal Tribunal (CAT) upheld the UK communication (...)

The Turkish Competition Authority imposes a daily fine on a big tech company for not complying with obligations previously imposed (Google)
ACTECON (Istanbul)
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ACTECON (Istanbul)
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ACTECON (Istanbul)
Turkish Competition Authority (“TCA”) recently published its decision (“Review Decision”) reviewing the obligations that ought to be fulfilled by the economic integrity comprised of Google LLC, Google International LLC and Google Reklamcılık ve Pazarlama Ltd. Şti. (will be referred to as “Google” (...)

Mergers

The Spanish Competition Authority imposes a fine on a fruit-wholesaler for gun-jumping (Nufri)
Gomez Acebo & Pombo (Brussels)
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Gomez Acebo & Pombo (Brussels)
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Gomez Acebo & Pombo (Brussels)
NUFRI, Sociedad Agraria de Transformación, has been fined by the CNMC for implementing a merger prior to its notification. In the beginning of the year, NUFRI acquired fruit-based products’ manufacturer Grupo Indulleida. The transaction was only pre-notified on 15 April 2019 and, subsequently, (...)

The French Competition Authority conditionally clears a merger in the construction industry (Point P Travaux Publics / Frans Bonhomme)
French Competition Authority (Paris)
Green light, subject to conditions, to the acquisition of Point P Travaux Publics by Frans Bonhomme* On 18 October 2019, Frans Bonhomme notified the Autorité de la concurrence of its plan to acquire control of one of its competitors, Distribution de Matériaux pour les Travaux Publics (...)

The German Competition Authority clears a merger in the market of processed meat and sausages products (Reinert / Kemper)
German Competition Authority (Bonn)
Processed meat and sausage producers Kemper and Reinert can merge* The Bundeskartellamt has today cleared the merger between the Reinert Group (H. & E. Reinert Holding GmbH & Co. KG) and the Kemper Group (H. Kemper GmbH & Co. KG /P.F.C. Pro Food Company GmbH & Co. KG). The (...)

The Italian Competition Authority clears a merger subject to remedies in the natural gas distribution market (AcegasApsAmga / Ascopiave)
Italian Competition Authority (Rome)
Antitrust: The acquisition of control of the business units of AcegasApsAmga S.p.A. by Ascopiave S.p.A. authorized with conditions* On 19 November 2019, the Italian Antitrust Authority authorized, with remedies, the acquisition of control of the business units of AcegasApsAmga S.p.A. by (...)

The EU Commission opens an in-depth investigation into proposed merger between the two leading copper scrap refiners in Europe (Metallo / Aurubis)
DG COMP (Brussels)
Mergers: Commission opens in-depth investigation into proposed acquisition of Metallo by Aurubis* The European Commission has opened an in-depth investigation to assess the proposed acquisition of Metallo by Aurubis, under the EU Merger Regulation. The Commission is concerned that the (...)

The Peruvian Competition Authority introduces a premerger review system of corporate concentration transactions
Peruvian Competition Authority - INDECOPI (Lima)
INDECOPI WILL DEVELOP AND ADMINISTER THE PREMERGER REVIEW SYSTEM* Today the Executive Branch has published Urgent Decree 013-2019 which approves the Act for premerger review, introducing for the first time in Peru a premerger review system of corporate concentration transactions which will be (...)

The EU Commission clears a merger subject to remedies in the market of telecommunications and TV broadcasting (Telia / Bonnier Broadcasting)
DG COMP (Brussels)
Mergers: Commission clears Telia’s acquisition of Bonnier Broadcasting, subject to conditions* The European Commission has approved, under the EU Merger Regulation, the proposed acquisition of Bonnier Broadcasting by Telia. The approval is conditional on full compliance with a commitments (...)

The EU Commission clears subject to behavioural commitments a merger in the telecommunications sector (Telia / Bonnier Broadcasting)
Van Bael & Bellis (Brussels)
On 12 November 2019, the European Commission (“Commission”) conditionally cleared Telia Company’s acquisition of Bonnier Broadcasting Company after a Phase II investigation. Telia is a Swedish telecommunications company that provides fixed and mobile telecommunications, broadband and television (...)

The French State Council upholds the decision of the French Competition Authority regarding the fine handed down to a merged company for non-compliance with its remedies (Darty / Fnac)
French Competition Authority (Paris)
The Conseil d’Etat confirms the decision regarding the fine handed down to Fnac Darty for non-compliance with its commitments* In a judgment dated 7 November 2019, the Conseil d’Etat confirmed the whole of the decision 18-D-16 by which the Autorité fined Fnac Darty €20 million for failing the (...)

The US FTC confirms the acquisition of a rival lessens competition in the market for microprocessor-driven prosthetic knees (Otto Bock / Freedom)
Cadwalader Wickersham & Taft (New York)
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Cadwalader Wickersham & Taft (Charlotte)
BUYER BEWARE: FTC ORDERS UNWINDING OF A CONSUMMATED TRANSACTION* What happened? On November 6, 2019, the Federal Trade Commission (“FTC”) voted 5-0 to uphold Administrative Law Judge D. Michael Chappell’s initial decision that Otto Bock HealthCare GmbH’s (“Otto Bock”) acquisition of rival Freedom (...)

State Aid

The EU Commission approves under EU State aid rules German scheme for very high capacity broadband networks in Bavaria
DG COMP (Brussels)
State aid: Commission approves German scheme for very high capacity broadband networks in Bavaria* The European Commission has approved, under EU State aid rules, a Bavarian scheme to deploy very high capacity networks in Bavaria. The aid will bring very fast broadband to customers in areas (...)

The EU Court of Justice reinforces its strict approach and holds that alterations to an approved aid scheme are to be cleared by the Commission (Dilly’s Wellnesshotel)
Baker Botts (Brussels)
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Baker Botts (Brussels)
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Baker Botts (Brussels)
The EU’s State aid procedures are complex and often slow and not always easy to navigate. Many companies may be content to leave the process of obtaining a green light from the European Commission (the “Commission”) to government authorities. Or they may take comfort from the fact that a large (...)

The EU Court of Justice leaves intact the Commission’s finding that e-procurement is a service of general interest which can be commercially exploited insofar as the State does not offer the service itself (TenderNed)
University of Bristol - Law School
In its Judgment of 7 November 2019 in Aanbestedingskalender and Others v Commission, C-687/17 P, EU:C:2019:932 (the ‘TenderNed’ case), the Court of Justice of the European Union (CJEU) rejected the appeal against the earlier Judgment of the General Court (GC) of 28 September 2017 (T-138/15, (...)

The EU Court of Justice provides further guidance on the selectivity assessment of environmental taxes in the framework of autonomous communities (UNESA)
Van Bael & Bellis (Brussels)
On 7 November 2019, the Court of Justice of the European Union (the “ECJ”) delivered a judgment on a request for a preliminary ruling by the Spanish Supreme Court. The request was made in proceedings between several hydroelectricity producers and the Spanish authorities, with regard to the (...)

The EU Court of Justice provides further guidance on how economic activities linked to non-economic functions must be treated in a State aid context (Aanbestedingskalender)
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 Court of Justice provides a preliminary ruling relating to a dispute between several electricity and hydroelectricity producers concerning a tax on the use of inland waters for the production of electricity (UNESA)
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 approves under EU State aid rules a public support to upgrade the traffic management equipment on freight locomotives in the Netherlands
DG COMP (Brussels)
State aid: Commission approves over €22 million of public support to promote rail transport operability in the Netherlands* The European Commission has approved, under EU State aid rules, €22.2 million of public support to upgradetraffic management equipment on freight locomotives in the (...)

Procedures

The Latvian Competition Council imposes a fine on a trader of building materials who failed to provide full information required during an investigation (DEPO DIY)
Konkurences padome (Riga)
The CC imposes fine on one of the largest traders of building materials for non-fulfilment of the company obligation* On 21 November, the Competition Council of Latvia (the CC) adopted a decision, detecting that one of the largest Latvia’s traders of building materials SIA “DEPO DIY” has not (...)

The Swedish Competition Authority initiates a market study on competition law in the Swedish markets for digital platforms
Swedish Competition Authority (Stockholm)
MARKET STUDY OF DIGITAL PLATFORMS* The Swedish Competition Authority is initiating a market study into competition on the markets for digital platforms in Sweden. This includes, for example, digital advertising, food delivery, audiobooks, and digital payment services. The study will illuminate (...)

Regulatory

The US Administration issues an executive order releasing a pair of broad and inclusive rules aiming at advancing price transparency in the healthcare market
Morgan Lewis (Houston)
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Morgan Lewis (Houston)
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Morgan Lewis (Houston)
Building on an executive order issued by US President Donald Trump in June, the administration released a pair of broad and inclusive rules aimed at advancing price transparency in healthcare on November 15, 2019. Key themes emerging from the hundreds of pages of price transparency rules (...)

The Mexican Competition Authority issues the Ministry of Communications and Transports an opinion which recommends modifications to port law and other measures to promote competition in manoeuvre services
Mexican Competition Authority (Mexico City)
COFECE RECOMMENDS MODIFICATIONS TO PORT LAW AND OTHER MEASURES TO PROMOTE COMPETITION IN MANOEUVRE SERVICES* The Federal Economic Competition Commission (COFECE or Commission) issued the Ministry of Communications and Transports (SCT for its initials in Spanish) and the respective commissions (...)

The French Competition Authority and the German Competition Authority present their joint study on algorithms and competition
French Competition Authority (Paris)
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German Competition Authority (Bonn)
Algorithms are among the most important technological drivers of the ongoing digitalization process. They are becoming more and more important, enabling firms to be more innovative and efficient. However, debate has arisen on whether and to what extent algorithms might also have detrimental (...)

The French and German Competition Authorities publish a joint study on algorithms and competition law
Van Bael & Bellis (Brussels)
On 6 November 2019, the French and German competition authorities presented their joint study on algorithms and competition at a conference in Paris. The study recognises algorithms as one of the “most important technological drivers of the ongoing digitalization process” but also identifies a (...)

Public sector

The US DoJ announces the formation of an agency entitled «Procurement Collusion Strike Force»
Morgan Lewis (Philadelphia)
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Morgan Lewis (Washington)
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Morgan Lewis (Sillicon Valley)
The US Department of Justice (DOJ) on November 5 announced the formation of the Procurement Collusion Strike Force (PCSF). This interagency initiative will “lead a coordinated national response to combat antitrust crimes and related schemes in government procurement, grant, and program funding (...)

The US DoJ launches a "Strike Force" to combat anticompetitive crimes in government procurement
Jones Day (Washington DC)
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Jones Day (Washington DC)
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Jones Day (Washington DC)
Last week, the U.S. Department of Justice ("DOJ") launched the Procurement Collusion Strike Force ("PCSF") to detect, investigate, and prosecute antitrust crimes in government procurement, grant, and program funding, at all levels of government. This interagency partnership includes prosecutors (...)

International

Spain: The Audiencia Provincial of Barcelona reduces the amount to be paid to a collecting society, finding that the fees requested from a concert promoter were abusive based on an earlier decision of the Spanish Competition Authority (SGAE) New
Martinez Lage, Allendesalazar & Brokelmann (Madrid)
The Audiencia Provincial of Barcelona has partially quashed the judgment of a Juzgado Mercantil of Barcelona which awarded collecting society SGAE € 115,398 corresponding to unpaid IP rights. The Audiencia Provincial found that the amount claimed by SGAE was inflated due to the application of (...)

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