October 2008

General antitrust

The EU Commission holds a roundtable on Internet commerce
Van Bael & Bellis (Brussels)
According to a Commission’s Press Release of 17 October 2008, the Commission held a roundtable with consumer and industry representatives in order to discuss the need to reform the competition rules applicable to Internet commerce. This group of stakeholders will produce a report for the (...)

Anticompetitive practices

The Turkish Competition Authority confirms lack of anticompetitive conduct in the bio-tech pharmaceuticals market despite evidence of bid rigging brought by criminal proceedings (Roche)
University of Leeds
The Turkish Competition Board (TCB) confirmed its previous finding of lack of anticompetitive conduct by Roche in the bio-tech pharmaceuticals market in Turkey. The decision of the TCB comes after its original decision being annulled by the Council of State for not having taken into (...)

The French Competition Authority fines a cosmetics manufacturer for prohibiting its selective distributors from selling its products on the internet (Pierre Fabre)
Simmons & Simmons (Paris)
Hewlett Packard (Boulogne-Billancourt)
On 29 October 2008, the French French Competition Council (Conseil de la concurrence) (the “Council") fined Pierre Fabre Dermo-Cosmétique, a cosmetics and personal hygiene products manufacturer, 17,000 Euros for having prohibited its selective distributors from selling products made by its (...)

The Japan Fair Trade Commission issues cease and desist orders and imposes surcharges on several bidders for bid-rigging on the electric equipment construction in relation to sewage disposal facilities market (Mitsubishi Electric and Hitachi)
Japan Fair Trade Commission (Tokyo)
Cease and Desist Orders and Surcharge Payment Orders against Participants in the Bidding for Electric Equipment Construction in Relation to Sewage Disposal Facilities Ordered by the City of Sapporo* The Japan Fair Trade Commission (JFTC)examined the participants in the bidding for designated (...)

A German Court agrees to a collective fine against eight compagnies for price fixing (Paper wholesale)
Mutze Korsch Rechtsanwaltsgesellschaft (Düsseldorf)
Background The Düsseldorf Court of Appeal has found an end to the first of four long-lasting antitrust proceedings currently pending with German courts (the other three being Cement, Industrial Insurance and Ready-mixed Concrete). All these proceedings concerned several questions and different (...)

The French Competition Authority sanctions the prohibition of internet sales imposed on the members of a selective distribution network under article 81.1 EC (Pierre Fabre)
Juliette Goyer Avocat (Paris)
In a decision n° 08-D-25 dated 29 October 2008 (hereinafter the “Decision”), the French Competition Council sanctioned Pierre Fabre Dermo-cosmétique for prohibiting its selected distributors from selling personal care and cosmetic products under the Klorane, Avène, Ducray and Galénic brands on (...)

A Belgian Court of appeal holds that a mere price-guideline does not constitute resale price maintenance as such (Frost / Evlier)
NautaDutilh (Brussels)
Description of the impugned case On 21 December 2005, Frost Invest NV (‘Frost’) and Evlier BVBA (‘Evlier’) entered into a ‘jaarovereenkomst 2006’ (Annual Agreement of 2006) for the sale of the product ‘Evlierkruiden’ by Evlier to Frost. Article 16 of this agreement laid down a minimum resale (...)

The Paris Commercial Court orders a search engine and an online advertiser to pay damages to a company whose name and domain name have both been used in the Adwords program (Cobrason / Google, Home Ciné Solutions)
EDHEC (Lille)
Google France and Home Ciné Solutions (HCS) have been sued in France by Cobrason before the Commercial Court (Tribunal de commerce) of Paris. Cobrason claims that HCS is using both its company title (Cobrason) and its domain name (Cobrason.com) in the form of keywords it had purchased from (...)

The Italian National Competition Authority fines € 210.000 a duty free operator for misleading advertising on the basis of unfair competition provisions (Italian Consumers Association/Aereoporti di Roma)
Inser (Trento)
The Italian National Competition Authority decision number 19028, issued on October 23rd, 2008, focuses on unfair competition in commercial activities. In this case, the Italian National Consumers Association made a complaint about the commercial behavior of the company Aeroporti di Roma (...)

The Bosnian & Herzegovinan Competition Authority prosecutes regional Government for intervening with competitive process on the market for pharmaceuticals reimbursed under the national health insurance scheme (Association of Foreign Pharmaceutical Producers in Bosnia & Herzegovina / Cantonal Government Sarajevo)
University of Macau - Faculty of Law
Summary Competition Authority of Bosnia & Herzegovina qualified the actions of the Sarajevo cantonal government that provided preferential treatment to the domestically produced medicines under the national health insurance scheme as anticompetitive practice and ordered it to modify its (...)

The UK OFT refuses to refer the newspaper and magazine supply sector to the Competition Commission
Van Bael & Bellis (Brussels)
On 22 October 2008, the UK Office of Fair Trading (“OFT”) issued three publications setting out its analysis of competition in newspaper and magazine distribution in the UK. These publications comprise (i) an opinion providing competition law guidance on the legality of newspaper and magazine (...)

The Japan Fair Trade Commission issues a cease and desist order and imposes surcharges on participants in bidding on the molten metal market (Mitsubishi Materials)
Japan Fair Trade Commission (Tokyo)
Cease and Desist Order and Surcharge Payment Order Against the Participants in the Bidding for Molten Metal Sold by Local Governments* The Japan Fair Trade Commission (JFTC)investigated the entrepreneurs that participated in the bidding for molten metal or the like sold by local governments (...)

The French Competition Authority sanctions a taxi association and some of its members for colluding to prevent new taxis from setting up in the département of Alpes-de-Haute-Provence (Syndicat d’artisans et entrepreneurs de taxis des Alpes-de-Haute-Provence)
French Competition Authority (Paris)
Anticompetitive agreement between taxi operators in the Alpes-de-Haute-Provence département: The Conseil de la concurrence sanctions a taxi association and some of its members for colluding to prevent new taxis from setting up in the département.* The Conseil has handed down a decision, (...)

The Budapest Court of Appeal clarifies the rules concerning the calculation of cartel fines and confirms the rules concerning the use of documents seized in dawn raids (Adeptus)
ADVANT Beiten (Brussels)
By decision of 15 October 2008, the Budapest Court of Appeal (the CoA) partially amended a decision issued by the Budapest Metropolitan Court (BMC) with respect to the calculation of cartel fines. The Hungarian Competition Authority (GVH) issued a decision in 2005 in a bid-rigging case (...)

The European Commission imposes fines against fresh bananas suppliers for operating a cartel in eight EU Member States (Dole / Chiquita / Wiechert / Del Monte)
European Commission - DG COMP (Brussels)
European Commission - DG COMP (Brussels)
"The banana cartel decision"* On 15 October 2008, the Commission adopted a prohibition decision against Dole, Chiquita, Weichert and Del Monte for operating a cartel for fresh bananas in eight EU Member States. The Commission imposed fines totalling €60.3 million on Dole, Weichert and Del (...)

The US Court of Appeals for the Federal circuit holds the use of cash payments to settle Hatch-Waxman patent litigation does not violate the antitrust laws if the settlement does not exceed the scope of patent and claim for patent validity is not a sham (Bayer / Barr)
Jones Day (Washington)
Jones Day (Washington)
On October 15, 2008, the Federal Circuit joined the growing list of federal courts to hold that the use of cash payments to settle Hatch-Waxman patent litigation does not violate the antitrust laws as long as (1) the settlement excludes no more competition than would the patent itself and (2) (...)

The UK Court of Appeal holds that compensatory damages are adequate and that a restitutionary reward is not available in an action for damages resulting from a cartel (Devenish Nutrition / Sanofi-Aventis)
Arnold & Porter Kaye Scholer (Brussels)
Introduction In view of the fact that Community law regulates competition, English law is required to provide remedies for violations to persons injured thereby. Indeed, as the European Court of Justice stated in Courage v. Crehan, "the full effectiveness of Article 81 of the Treaty and, in (...)

The UK Court of Appeal decides on restitutionary damages in an action for damages resulting from a cartel (Devenish Nutrition / Sanofi-Aventis)
University of Exeter
By its decision of 14 October 2008, the Court of Appeal dismissed the appeal of the claimant, Devenish Nutrition Ltd, against the decision of Lewison J of 19 October 2007 . As a result, claimants seeking damages in a private action against a cartel, for losses based on a finding of an (...)

The UK Court of Appeal upholds the adequacy of compensatory damages and rules that a restitution award is not available in a cartel damages claim (Devenish Nutrition / Sanofi-Aventis)
Osborne Clarke (London)
Brief summary of facts The claimants, are all purchasers (either direct or indirect) of vitamins from one or more of the defendants. The defendants, in particular, Sanofi-Aventis SA (Aventis), Hoffman-La Roche (Roche) and BASF AG, are manufacturers of vitamins who were found by the European (...)

The French Supreme Court holds that the public policy nature of art. L. 442-6 of the French Commercial Code does not affect the application of a jurisdiction clause (Monster Cable Products v. Audio Marketing Service and Auramo France v. Seith France)
Vogel & Vogel (Paris)
Assessment of the consequences on jurisdiction of the unchallenged public policy qualification for provisions relating to restrictive practices can be derived from two decisions, rendered by different chambers of the Cour de cassation. In the first case, a French distributor brought an (...)

The Irish Competition Authority issues enforcement decision regarding alleged anticompetitive actions by the body in charge of supplying drugs, medicines and medical appliances to the public (Health Services Executive)
London School of Economics
Introduction The Health Services Executive (HSE) is a body established pursuant to the Health Act 2004. According to section 7(1) of that Act, the purpose of the HSE is to “use the resources available to it in the most beneficial, effective and efficient manner to improve, promote and (...)

The ECJ Advocate General Sharpston issues opinion on the repackaging of parallel-traded pharmaceuticals (The Wellcome Foundation)
Van Bael & Bellis (Brussels)
On 9 October 2008, Advocate General Sharpston issued her opinion in Case C-276/05 (The Wellcome Foundation Ltdv Paranova Pharmazeutika Handels), a preliminary reference to the European Court of Justice (“ECJ”) from the Austrian Supreme Court. These proceedings add yet another episode to the (...)

The Austrian Supreme Court upholds record fine amounting to €75.4 million (Elevators and escalators suppliers)
Becker Günther Polster
OBB (Vienna)
1. Background On 14 December 2007, the Austrian Cartel Court imposed a record fine amounting to EUR 75.4 million in total against five suppliers of elevators and escalators after proceedings have been initiated by a leniency application before the Austrian Federal Competition Authority (...)

The EU Court of Justice examines an appeal on the CFI’s judgment in graphite products cartel (SGL Carbon)
Van Bael & Bellis (Brussels)
On 8 October 2008, the Court of First Instance (“CFI”) upheld a European Commission decision imposing fines totalling € 101.44 million on five companies for participating in a cartel on the market for electrical and mechanical carbon and graphite products. On 3 December 2003, the Commission (...)

The German Competition Authority orders an energy company to pay €55 million to customers to settle excessive pricing investigation (E.ON)
Van Bael & Bellis (Brussels)
Practising Law Institute (New York)
According to a press release of 6 October 2008, the German Federal Cartel Office (FCO) closed its proceedings against six regional gas suppliers belonging to the E.ON group in exchange for a commitment according to which the companies agree not to increase prices for two months and to pay a (...)

The EU Commission publishes draft of revised liner shipping block exemption
Court of First Instance of Namur (Namur)
On 6 October 2008, the Commission published on its website a preliminary draft of a new block exemption regulation relating to certain categories of agreements, decisions and concerted practices between liner shipping companies (i.e., shipping consortia). Shipping consortia are a form of (...)

A Dutch Court confirms the annulment of a decision adopted by the NCA on the ground of inadequate examination of whether recommended prices were restrictive of competition by their object (NIP / NVVP / LVE)
European Commission - DG COMP (Brussels)
General Court of the European Union (Luxembourg)
In April 2004, the Dutch Competition Authority (hereafter the ‘NMa’) imposed fines upon NIP, NVVP, and LVE, three professional associations in field of psychological services, for breach of Article 6 of the Dutch Competition Act (a provision equivalent to Article 81 (1) EC). Furthermore, the (...)

The Italian Antitrust Authority launches a cartel investigation against the main auction houses (Case d’Asta)
European University Institute (Florence)
3D Legal-Dandria (Rome)
The Italian Antitrust Authority (hereinafter, also “IAA”) recently launched an investigation against the main Italian auction houses, which are suspected of having colluded on prices and other trading conditions in violation of Article 81 EC and/or of Article 2 of the Italian Law 287/90, the (...)

The French Competition Authority accepts commitments offered as part of the negotiated settlement procedure in a minimum retail price maintenance case (Cie Financière et de Participation Roullier)
Moskvina Law
Bredin Prat (Paris)
Background Compagnie Financière et de Participation Roullier (“CFPR”) mainly produces agricultural supplies, and is also active in agrochemicals and food production. CFPR produces licking salt blocks (“LSB”) for farm animals, which are particularly profitable products. CFPR’s clients are (...)

The French Competition Authority fines a group of the agribusiness sector with a € 2,000,000 fine for inciting its distributors to apply the suggested resale price supplied by itself, who also applied a price monitoring policy (Roullier Group)
UGGC Avocats (Paris)
Description of the impugned case Resale price of the products manufactured by the Roullier group were sent to the distributors. In addition, sales force of the Roullier group were regularly taking orders directly from the clients in lieu of the distributors. While taking orders from (...)

The EU Commission imposes heavy fines in the long-lasting candle wax cartel (ENI / ExxonMobil / Hansen & Rosenthal / Tudapetrol / MOL/ Repsol / Sasol / RWE / Total)
Delegation of the European Union to the United States (Washington D.C.)
European Commission - DG HR (Brussels)
European Commission - DG COMP (Brussels)
"Bringing light into the dark: Commission fines long-lasting candle wax cartel more than EUR 676 million"* With its fifth cartel decision in 2008 the Commission imposed heavy fines on several producers of paraffin waxes and slack waxes. The decision adopted on 1 October established that (...)

Unilateral Practices

The Turkish Competition Authority re-evaluates a complaint of abuse of dominant position in the pharmaceutical sector upon the annulment decision of the State Council (Roche)
Erdem & Erdem (Istanbul)
The Turkish Competition Board (hereinafter referred to as “CB”) had re-evaluated the allegations about the abuse of dominant position by Roche Mustahzarları A.S. (hereinafter referred to as “Roche”), upon the annulment decision of the 13th Chamber of the State Council numbered 31.03.2008 and (...)

The Macedonian Administrative Court quashes two Competition Authority’s decisions having established abusive charges on consumers on the mobile telecommunications market (T-Mobile / Cosmofon / KZK)
University of Macau - Faculty of Law
On 15 February 2008 Macedonian Competition Authority (Êîìèñè¼àòà çà çàøòèòà íà êîíêóðåíöè¼àòà) (KZK) issued two decisions finding the abuse of dominance on the mobile telecommunications market by two providers : T-Mobile (Ò-Ìîáèëå Ìàêåäîíè¼à) and Cosmofon (Êîñìîôîí Óñëóãè íà ìîáèëíà (...)

The Italian competition authority fines more than € 3 M Rome and Milan airport managers for abuse of dominant position (Aeroporti di Roma-Tariffe Aeroportuali / SEA/Tariffe aeroportuali)
Freshfields Bruckhaus Deringer (Rome)
European Commission
ADR (Rome) and SEA (Milan) have been fined for overcharging competitors for refuelling services; ADR has also been fined for excessive prices for access services to Fiumicino’s cargo infrastructures and office space, while SEA has been sanctioned for excessive charges for the provision of (...)

The Italian Competition Authority fines an airport for excessive prices and margin squeeze practices for access to certain airport facilities (Aeroporti di Roma)
Municipality of Cagliari
Last October the Italian Competition Authority (ICA) has closed investigations started in 2006 following complaints received by several freight operators and airlines about the anticompetitive practices of Aeroporti di Roma (ADR) . ADR is the dominant operator at the Rome’ airports of (...)

The Italian Regional Administrative Tribunal in Lazio upholds the Competition Authority’s finding that mobile phone operators do not hold a collective dominant position in the market for access to mobile phone network (Eutelia)
Latham & Watkins (Brussels)
Introduction The Regional Administrative Tribunal of Latium, Rome office, First Chamber (“TAR Latium”) by a judgment of 31 December 2008, has upheld a decision of the Italian Antitrust Authority (“IAA”) finding that the Mobile Network Operators (“MNOs”) TIM, Vodafone and Wind do not hold a (...)

The Spanish Competition Authority dismisses a complaint against a car insurance company for abuse of a dominant position (AXA)
DG TRADE (Brussels)
Garrigues (Brussels)
The decision-making body of the Spanish Competition Authority (Consejo Nacional de la Competencia , hereinafter the CNC) recently took a decision bringing to an end an investigation against the insurance company Axa for an alleged abuse of a dominant position within the Spanish car insurance (...)

The Polish Supreme Court issues a leading ruling defining the concept of abuse of a dominant position
Greenberg Traurig (Warsaw)
UNIMOT (Zawadzkie)
On 16 October 2008, the Polish Supreme Court issued a decision clearly defining the concept of abuse of a dominant position by imposing unfair contractual conditions. The main legal points concerned the ability to act independently as an element of the definition of a dominant position. The (...)

The Maltese Competition Authority condemns the transport regulator’s unfairly discriminatory treatment against open-top buses operator (Spiteri - Garden of Eden / Malta Transport Authority)
Lia & Aquilina (Malta)
Garden of Eden is a Maltese commercial undertaking operating in the public and private transport markets in Malta. It was originally owned and operated by Mr. Angelo Spiteri. Following the latter’s death, applicants inherited this business concern and continued in its operation. In 1993, (...)

The Slovakian Competition Authority fines a gas transport network operator for abuse of its dominant position (Eustream)
Van Bael & Bellis (Brussels)
Practising Law Institute (New York)
On 10 October 2008, the Council of the Slovak Antimonopoly Office imposed a fine of 98.9 million SKK (approximately € 3.3 million) on eustream for an abuse of its dominant position. The company is the operator of the only gas transport network in Slovakia and is a member of the SPP group (a (...)

The EU Commission addresses to the Slovak Republic a decision based on Article 86 in conjunction with Article 82 of the EC Treaty finding that the extension of the postal monopoly in Slovakia is illegal (Slovenská Pošta)
European Commission - DG COMP (Brussels)
"Extension of postal monopolies: the Slovak law reserving hybrid mail delivery services for Slovenská Pošta infringed Article 86 in conjunction with Article 82"* I. Context of the procedure On 7 October 2008, the Commission addressed to the Slovak Republic a decision based on Article 86 in (...)

The French Competition Authority accepts commitments from the incumbent operator in the sector of engineering, consultancy and certification of telecommunication facilities in a case of alleged abuse of dominant position (Solutel / France Télécom)
Maulin Avocats (Paris)
Herbert Smith Freehills (Paris)
In a decision of 7 October 2008, the French Competition Council (the "Council") accepted commitments submitted by France Telecom regarding an alleged abuse of its dominant position in the sector of engineering, consultancy and certification of private telecommunications facilities pursuant to (...)

The Czech Supreme Administrative Court confirms the Competition Authority’s decision in a leading agency case (Sazka)
Wolf Theiss (Prague)
Czech Ministry of Justice (Prague)
By its decision of 20 November 2008, the Czech Supreme Administrative Court confirmed the decision of the Regional Court of Brno and hence the decisions of the Office for the Protection of Competition by which Sazka, the dominant Czech operator of betting games and lotteries, was found guilty (...)

The Italian Competition Authority investigates a Pay-TV operator under Art. 82 EC for applying unfair and discriminatory conditions to a new entrant for access to its satellite platform (Sky Italia)
Freshfields Bruckhaus Deringer (Rome)
The investigation launched by the Italian Antitrust Authority (IAA) on 2 October 2008 aims at ascertaining a possible infringement of Article 82 EC by Sky Italia (Sky), the Italian vertically integrated Pay-TV incumbent. It has been prompted by a complaint brought by Conto TV, a small and (...)

The Swedish Competition Authority closes an investigation concluding that an insurance company did not engage in an abuse of dominant position by introducing premium reductions on some of its insurance products relating to pensions (Alecta Pension Insurance)
Swedish Competition Authority (Stockholm)
In December 2007, at its own initiative, “Konkurrensverket”, the Swedish Competition Authority, launched an investigation to determine whether the Alecta mutual pension insurance company had abused its dominant position by introducing premium reductions, of up to 50 per cent, on some of its (...)


The EU Commission conditionally clears a merger in the oil and petroleum production sector (Galp Energia / ExxonMobil Iberia)
JG Associates (Brussels)
European Commission - DG COMP (Brussels)
Mergers: main developments between 1 September and 31 December 2008* On 31 October the Commission cleared, subject to conditions, the proposed acquisition by Galp Energia of Portugal of Esso Portuguesa, Esso Española and part of ExxonMobil Petroleum & Chemical. The Commission found that (...)

The Belgian Competition Council allows a transaction between two cinema chains following previous merger remedies (Kinepolis / Multiscope)
KU Leuven
Background information The Kinepolis Group NV (hereafter: Kinepolis), the largest cinema chain in Belgium, was formed after a merger in 1997 of Groep Bert and Groep Claeys. The merger had been approved by the Belgian Competition Council under a number of conditions. Those merger remedies (...)

The UK Competition Authority decides not to refer to phase II a completed acquisition in the airline sector, subject to undertakings (Air France-KLM / VLM)
The operation Air France KLM SA (AF-KLM) is active in the provision of air transportation services (passengers and freight) and also of ground services such as passenger handling. AF-KLM operates 17 routes at London City Airport (LCY). VLM Airlines is a regional airline carrier registered (...)

The US DOJ closes its investigation without challenge of a merger between two airlines companies (Delta Airlines, Northwest Airlines)
Jones Day (Houston)
Jones Day (New York)
Today the Department of Justice Antitrust Division announced that it is closing its investigation of the proposed merger of Delta Air Lines and Northwest Airlines. Among the several airlines whose possible mergers have been discussed in the last year, these two carriers had particularly little (...)

The European Commission launches consultation on merger regulation
Van Bael & Bellis (Brussels)
On 28 October 2008, the European Commission launched a public consultation on the functioning of the EC Merger Regulation. According to the Commission, the main purpose of the consultation is to evaluate how the jurisdictional thresholds and the referral mechanisms provided for in the Merger (...)

The Swedish Competition Authority clears a merger between two Swedish TV programme companies after a second phase investigation (TV4/C More)
Cosmetics Europe (Brussels)
Background TV4 is one of the leading Swedish commercial TV programme companies. The TV4-group includes the head channel TV4 as well as a number of thematic niche TV channels. TV4 also provides news services via internet and mobile phone, text television and programme content on the (...)

The OFT accepts undertakings in lieu of reference and clears the merger conditional to transfer of slots, while accepting that restoration of competition to pre-merger levels does not require to precisely replicate the pre-merger situation (Air France Finance-City Jet/VLM Airlines)
Municipality of Cagliari
By a recent decision the OFT accepted the commitments offered by the merging parties upon the basis of Article 73 of Enterprise Act and conditionally cleared the Air France Finance-City Jet/VLM Airlines merger instead of referring it to the Competition Commission (CC) . The decision is (...)

The UK Competition Authority waives competition law in the interest of "maintaining the stability of the UK financial system" and clears a major concentration in the banking sector (Lloyds / HBOS)
Indian Administrative Service
Of all the human powers operating on the affairs of mankind, none is greater than that of competition. (Henry Clay, 1832) A. Abstract In an exceptional stir, the UK government engineered the merger of Lloyds TSB plc (Lloyds) and HBOS plc (HBOS) waiving the competition law in the interest (...)

The Italian National Competition Authority clears the acquisition of a licence for collecting sports bets without remedies (Sisal Match point)
Inser (Trento)
The Italian National Competition Authority decision number 19034, issued on 23 October 2008, evaluates a case of dominant position in the gaming and gambling market. Sisal Match Point S.p.A. (hereafter indicated as Match Point) is a company that collects and manages sports bets with its own (...)

The Italian Competion Authority clears a merger in the facility management market while reducing from 5 to 2 years the duration of the non-compete provision (Pirelli)
Codacons (Rome)
Pirelli & C. Real estate Integrated Facility Management (hereinafter PREIFM) is a facility management company, in other words a company which deals with the supply of technology services for industrial, commercial and civil infrastructures for an efficient managment of the buildings. (...)

The Italian Competition clears without remedies a merger in the large retail distribution sector (Conad del Tirreno)
Codacons (Rome)
Conad del Tirreno is an Italian retailing cooperative company set in Pistoia (Tuscany), which operates in the food market and its aggregate turnover in 2007 was 1,111 million euros. In the case before, there has been an acquisition of three food market retailers. They were jointly owned by two (...)

German merger control regime: An overview
Freshfields Bruckhaus Deringer (Berlin)
Freshfields Bruckhaus Deringer (Berlin)
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 EU Commission issues a revised version of the merger remedies notice
Queen Mary University of London
The European Commission («Commission») published in October 2008 its Remedies Notice revising the 2001 Remedies Notice. The Commission in this Notice provides taxonomy of the different types of remedies that it will consider and outlines the procedure of submitting remedies. Taxonomy of (...)

The EU Commission conditionally approves a merger in the retail fuel sector using customer surveys and econometric studies to assess the likelihood of anticompetitive effects (StatoilHydro / ConocoPhillips)
Charles River Associates International (CRA) (London)
E.CA Economics (Berlin)
Positive Competition (Brussels)
Fuel for thought - StatoilHydro/ConocoPhillips (Jet)* I. Introduction When faced with a proposed merger, antitrust authorities have to assess the likelihood and the magnitude of anticompetitive effects that may occur following the removal of one of the merging parties as an independent (...)

The EU Commission approves, subject to divestiture, the acquisition of a network of jet fuel stations in Scandinavia by a Norwegian Company (Statoil Hydro / ConocoPhillips)
JG Associates (Brussels)
European Commission - DG COMP (Brussels)
Mergers: main developments between 1 September and 31 December 2008* On 21 October the Commission gave its approval to the proposed acquisition of ConocoPhillips’ network of Jet fuel stations in Scandinavia by StatoilHydro of Norway following an in-depth investigation opened in May 2008. To (...)

The US FTC places a price cap on an undertaking’s intra-company transfer price as a condition precedent to clearing a merger in the pharmaceutical sector (Fresenius / Daiichi)
Weil, Gotshal & Manges (Washington)
On September 15, 2008, the FTC announced that it challenged a manufacturing, distribution, and supply agreement between Fresenius Medical Care Ag & Co. KGaA (Fresenius) and Daiichi Sankyo Company, Ltd. (“Daiichi”) based on allegations that the proposed transaction would violate U.S. (...)

The Macedonian Competition Authority clears a merger in the mobile telecommunications sector subject to divestitures by following EC standards (Deutsche Telekom / OTE)
University of Macau - Faculty of Law
Summary The Macedonian Competition Authority conditionally cleared the Deutsche Telekom’s acquisition of the controlling interest in OTE accepting structural divestitures (sale of Cosmofon’s operations) and behavioral commitments (continuation of the marketing of Cosmofon’s products and (...)

The US FTC imposes in a merger the divestiture of a distribution agreement and the installation of a firewall to protect competition in the markets of distilled spirits (Pernod Ricard / V&S Vin & Sprit)
Akin Gump Strauss Hauer & Feld (Dallas)
On October 17, 2008, the FTC announced that it had finalized the consent decree entered into with Pernod Ricard and V&S Vin & Sprit to approve the merger of these two companies. Through an acquisition agreement signed on March 30, 2008, Pernod purchased V&S from the Swedish (...)

The Irish Competition Authority clears an acquisition referred back by the European Commission in the brewery market (Heineken / B&C)
Trinity College Dublin (Dublin)
Introduction 1 On 3 October 2008 the Competition and Consumer Protection Commission (CCPC), Ireland’s competition agency, cleared the acquisition by Heineken N. V. (Heineken) of Beamish and Crawford plc (B&C) which, in turn, was owned by Scottish and Newcastle plc (S&N). It was (...)

Belgian Competition Council’s second decision on Kinepolis merger conditions offers more elaborate motivation and different outcome (Kinépolis)
KBC Bank & Verzekering (Brussels)
Facts In 1997, the Kinepolis Group was set up in a merger between Groep Bert and Groep Claeys to be active both as cinema operators and to a lesser extent as film distributors. Through the merger the Kinepolis Group would become the dominant player in cinema facing competitors of (...)

State Aid

The Italian Supreme Court refers for a preliminary ruling to the EU Court of Justice the question of whether Italian tax relief measures for cooperative societies constitute State aid within Art. 87 EC (Famiglia Coop Agricola Carli Albino)
EUJUS (Rome)
Factual background Under Italian tax rules, cooperative societies benefit from significant fiscal reliefs. The ability to benefit from the reliefs is dependant upon the not-for-profit nature of the activity performed by the cooperative. Similarly to tax purposes, the not-for-profit nature (...)

The Dutch State Council rules that if the execution of a project does not depend upon the financial support of the public authorities, it does not constitute a form of State aid (Cassini)
Adyen (Amsterdam)
Factual Background On 19 June 2007, Provincial Executive Noord-Holland approved a zoning plan drawn up by the Municipality of Heerhugowaard in which the development of a wind park to generate renewable energy was approved. The construction of this wind park required very substantial (...)

A Swedish Administrative Court finds that an agreement on sale and decontamination of a piece of land constitutes illegal State aid under national law as well as under the EC law (Egeskans)
Djungo (Stockholm)
General Court of the European Union (Luxembourg)
Öberg & Associés (Stockholm)
Factual Background The municipal council in Karlskrona decided to sell a piece of land to the building contractor NCC for 5 million SEK. Moreover, it was agreed that the municipality should pay the costs of NCC decontaminating the land (which was required if the land was to be exploited). (...)

The European Commission issues first final decision concerning the authorisation of R&D State aid (ITP)
European Commission - DG FISMA (Brussels)
"The first final decision involving a detailed economic assessment of R&D aid: the ITP case"* On 21 October 2008, the Commission authorised, under the EC Treaty rules on state aid (Article 88(2)), €35 million of public funding granted by Spain to Industria de Turbo Propulsores (ITP) for (...)

A Swedish Administrative Court of Appeal finds that costs from the EU regional development fund can not be considered as State aid since they favoured an individual undertaking and were hence illegal (Länsstyrelsen / Örebro län)
Djungo (Stockholm)
General Court of the European Union (Luxembourg)
Öberg & Associés (Stockholm)
Factual Background In 2005 the private undertaking AB Göta Kanalbolag was given a grant from the European Regional Development Fund as regards the project “Göta Kanal fortsättning 2006” (Göta Kanal Continues 2006 - Göta Kanal being a famous channel that crosses Sweden from West to East). The (...)

The EU Commission adopts a communication on the application of State aid rules to measures taken in relation to financial institutions in the context of the current global financial crisis
European Commission
The new State aid temporary framework* I. Introduction: the financial and economic crisis The unprecedented crisis in the international financial markets has created major challenges for the EU. Since the beginning of the crisis, the Council has emphasised the necessity of maintaining the (...)

A Dutch District Court rules that an agreement between a municipality and a company for the use of car parks is not contrary to Art. 87 EC (P1 Holding)
Adyen (Amsterdam)
Factual Background The Municipality of Maastricht entered into an agreement with Q-Park NV on 27 November 2002 by which Q-Park NV was granted the right to exploit a number of Car Parks for a period of thirty years. The Municipality of Maastricht and Q-Park NV entered into this agreement (...)

A Dutch District Court holds that the award of parking management contracts in a cross-border region does not have automatically an effect on intra Community trade (P1 Holding)
Arendt & Medernach (Luxembourg)
NautaDutilh (Luxembourg)
Case 1. On 22 November 2002, the Municipality of Maastricht has awarded directly, i.e., without any public tender procedure a contract to the undertaking Q-Park for the renovation and operation of several parking lots for a period of 30 years. P1, one of Q-Park’s competitors, challenged (...)

The Spanish Supreme Court of the Basque Country clarifies the scope on the application of the special tax regime (Arbegui)
Hogan Lovells (Madrid)
Allianz (Brussels)
Factual Background: Appeal by a company located in Vizcaya (the "Company") against a judgement by the Economic-Administrative Court of Vizcaya dated 18 September 2006 confirming the refusal of the Company’s tax settlement by the Regional Tax Office of Vizcaya ("RTOB") due to an illegal tax (...)

The Spanish Supreme Court declares that an aid scheme may not be suspended if a final decision on the illegality of such aid scheme has not been issued (Regional Administration of Vizcaya)
Hogan Lovells (Madrid)
Allianz (Brussels)
Factual Background: Appeal by the Regional Administration of Vizcaya and the Chamber of Trade, Industry and Sailing of Bilbao (the "Appellants") against two writs of the Superior Court of Justice of the Basque Country temporarily suspending the regional Decree of Vizcaya 10/2006 on (...)


The Czech Supreme Administrative Court rules that a concurrent application of EU law and national law by the Competition Authority to one anticompetitive conduct does not violate the ne bis in idem principle (RWE Transgas)
Havel and Partners
I. Introduction On 31 October 2008 the Supreme Administrative Court of the Czech Republic quashed a judgment of the Regional Court in Brno of 22 October 2007 which had annulled a decision of the NCA whereby a fine of CZK 240 mil. (approx. EUR 8,5 mil.) had been imposed on RWE Transgas for an (...)

The Swiss Supreme Court rules on legal privilege in a cartel conducted by road transports and warehousing companies (Panalpina)
International Committee of the Red Cross (Geneva)
On October 28, 2008, the Swiss Supreme Court finally dismissed the claim from several companies which had been subject to dawn raids and opposed the use by the Swiss Competition Commission (“Comco”) in a cartel investigation of certain internal documents issued for or by in-house counsel on (...)

The Dutch Competition Authority imposes a fine for breach of a seal (Sara Lee)
Court of First Instance of Namur (Namur)
On 20 October 2008, the Dutch competition authority (“NMa”) announced that it had imposed a EUR 269,000 fine on Sara Lee Household & Bodycare Nederland B.V. for the overnight breach of a seal affixed by the NMa during a surprise inspection of Sara Lee’s premises. The penalty for such an (...)

The European Commission closes its investigation on an alleged obstruction of an inspection in the pharmaceuticals sector (Sanofi-Aventis)
Court of First Instance of Namur (Namur)
On 16 October 2008, the Commission decided to close its investigation into Sanofi-Aventis’ alleged obstruction of a Commission inspection in the framework of the pharmaceuticals sector inquiry. During the inspection, Sanofi-Aventis denied Commission inspectors access to certain documents until (...)

The US Court of Appeals for the Federal Circuit dismisses antitrust claims against a reverse payment agreement between pharmaceutical companies (In Re Ciprofloxacin Hydrochloride Antitrust Litigation)
ArbJournal (Richmond)
On 15 October 2008 the Federal Circuit affirmed the grant of summary judgment by the Court for the Eastern District of New York that patent settlement agreements («Agreements») entered into between Bayer AG and Bayer Corp (collectively «Bayer») and several manufacturers of generic drugs (...)

The Hague District Court revisits fishing expeditions (Allianz, Fortis)
Court of First Instance of Namur (Namur)
On 13 October 2008, the President of the District Court of The Hague handed down its judgment in the joint summary proceedings initiated respectively by Allianz Nederland Schadeverzekering N.V. (Allianz) and Fortis Corporate Insurance N.V (Fortis) against the Dutch Competition Authority (NMa). (...)

A Dutch Court holds that fines imposed by the NCA for infringements of the national competition act are not deductible for corporate tax purposes, while fines imposed by the European Commission are partly deductible (X/NMa)
European Commission - DG COMP (Brussels)
General Court of the European Union (Luxembourg)
One more time, the Rechtbank of Haarlem has been faced with the issue of the deductibility for corporate tax purposes of fines imposed for breach of competition law. The case at issue concerns an undertaking active in gardening services (hereafter: “X”) which was fined by the Dutch (...)

The Spanish Competition Authority launches dawn raids giving rise to controversy over defense rights (Colgate Palmolive España / L’Oreal / Stanpa)
DG TRADE (Brussels)
Garrigues (Brussels)
The entry into force of the new Spanish leniency program has significantly stepped up cartel investigations undertaken by the Spanish Competition Authority (hereinafter “CNC”). Under the new regulatory framework enacted by the Spanish Competition Act in July 2007, the CNC has initiated 48 (...)

The Polish Competition Authority issues updated draft guidelines for setting fines in respect of competition rules violations
Kochanski (Warsaw)
This draft was issued pursuant to Articles 81 and 82 of the EC Treaty as well as Articles 6 and 9 of the Polish Act on Competition and Consumer Protection of 16 February 2007 (Journal of Laws of 2007, n° 50, pos. 331 as amended) (hereinafter the “CCP Act”). The draft aims at increasing (...)

The EU Council publishes its regulation and calls for cooperation among the National Competition Authorities in the European Competition Network
Nest Avocats (Paris)
1.The adoption of Regulation (EC) n° 1/2003 has undoubtedly encouraged the National Competition Authorities ("NCA") to be more eager in their application of Community law. This eagerness has been fuelled by a number of factors. Article 3§1 of Regulation n° 1/2003 requires that the NCAs apply (...)


The UK OFT reviews the national newspapers code of practice
Van Bael & Bellis (Brussels)
On 22 October 2008, the UK Office of Fair Trading (“OFT”) issued three publications setting out its analysis of competition in newspaper and magazine distribution in the UK. These publications comprise (i) an opinion providing competition law guidance on the legality of newspaper and magazine (...)

The Maltese Commission for Fair Trading sanctions the Government’s temporary exclusive concession of a yacht yard in favour of an undertaking (S & D Yachts)
Lia & Aquilina (Malta)
S & D Yachts Limited, an undertaking acting as agent for yachts mooring in yacht yards in Malta, requested the Director of the Office for Fair Trading (hereinafter referred to as ’the Director), to submit for review to the Commission for Fair Trading (hereinafter referred to as ’the (...)

The UK Office of Gas and Electricity Markets responds to the Government’s Renewable Energy Strategy consultation on measures to deliver 15% renewable energy by 2020
Jacobs (Glasgow)
Background Tackling the effects of climate change is one of the most significant global challenges the UK currently face. The energy sector is responsible for around 44% of greenhouse gas emissions in the UK, and therefore has a considerable role to play in meeting this challenge. The (...)

The OECD holds a roundtable on experience with direct settlements in cartel cases
OECD - Competition Division (Paris)
Executive summary, by the Secretariat Considering the discussion at the roundtable and the member country submissions, a number of key points emerge: (1) There is great interest in settlements of cartel cases; many jurisdictions are currently experimenting with slightly different versions (...)

The OECD holds a roundtable on resale price maintenance
OECD - Competition Division (Paris)
Key documents: Executive summary, by the Secretariat 1. From the country submissions, the background paper, and the discussion at the roundtable in October 2008, the following points emerge: (1). The term “resale price maintenance” (RPM) refers to a particular type of vertical agreement (...)

The OECD holds a roundtable on monopsony and buyer power
OECD - Competition Division (Paris)
Executive summary, by the Secretariat Considering the discussion at the roundtable, the delegates‘ written submissions, and the background paper, the following key points emerge: (1) Buyer power is concerned with how downstream firms can affect the terms of trade with upstream suppliers. (...)