October 2016

Anticompetitive practices

The US Court of Appeals for the Tenth Circuit holds that the invocation of intellectual property rights is a presumptively valid business justification sufficient to rebut a refusal to deal antitrust claim (Solidfx / Jeppesen Sanderson)
Cleary Gottlieb Steen & Hamilton (Rome)
Tenth Circuit holds IPRs defense available to rebut a refusal to deal antitrust claim* On 31 October 2016, the United States Court of Appeals for the Tenth Circuit (the “Court of Appeals”) held that the invocation of IPRs is a presumptively valid business justification sufficient to rebut a (...)

The EU and Canada sign the Comprehensive Economic and Trade Agreement
Davies Ward Phillips & Vineberg (Toronto)
,
International Monetary Fund (Washignton)
What does CETA mean for EU and Canadian competition policy?* Introduction With the Comprehensive Economic and Trade Agreement (CETA) having finally been signed by the EU and Canada on October 30, 2016, it’s worth exploring what it says about competition law and policy and how it may impact (...)

The Ukrainian Competition Authority issues a 7 million euros fine on seven alleged road fuel cartelists
Asters (Kiev)
,
Asters (Kiev)
Antimonopoly Committee of Ukraine - What is behind EUR 7 million fine on seven alleged road fuel cartelists?* On 28 October 2016, the Antimonopoly Committee of Ukraine (AMC) fined seven companies, including Shell and SOCAR, a total of approx. EUR 7 million for alleged concerted practices. The (...)

The EU Commission sends a statement of objections against two airlines concerning a potentially anticompetitive codeshare agreement (Brussels Airlines / TAP Portugal)
DG COMP (Brussels)
Antitrust: Commission sends Statement of Objections to Brussels Airlines and TAP Portugal on code-sharing on Brussels-Lisbon route* The European Commission has informed Brussels Airlines and TAP Portugal of its preliminary view that their codeshare cooperation on passenger services between (...)

The Turkish Competition Board imposes administrative monetary fine on an expo centre operator for abuse of dominance through refusal to deal (Congresium)
ELIG Gürkaynak Attorneys-at-Law (Istanbul)
This case note analyses the Turkish Competition Board’s (“Board”) Congresium ATO decision dated 27.10.2016 and numbered 16-35/604-269. The Board’s decision comes following the judgment of the Ankara 3rd Administrative Court which annulled the Board’s previous decision with respect to the same case (...)

The EFTA Surveillance Authority investigates members of the Norwegian banking sector for suspected breaches of competition rules (DNB / Nordea / Finance Norway / BankID)
European Commission
ESA investigates DNB, Nordea, Finance Norway and BankID* The EFTA Surveillance Authority (ESA) has opened proceedings against DNB, Nordea, Finance Norway and BankID for suspected breaches of the competition rules in the EEA Agreement. Bits, a related organisation to Finance Norway, will also (...)

The EU Commission opens a formal investigation concerning a network sharing agreement between two mobile phone companies (O2 CZ / CETIN / T-Mobile)
DG COMP (Brussels)
Antitrust: Commission opens formal investigation into mobile telephone network sharing in Czech Republic* The European Commission has opened an investigation into a network sharing agreement between two Czech operators of mobile telephony, O2 CZ / CETIN and T-Mobile CZ. The Commission will (...)

The Belgian Competition Authority confirms unannounced inspections carried out in the market of distribution and sale of infra-red cabins
Belgian Competition Authority (Brussels)
The Belgian Competition Authority confirms the inspection at an undertaking active in the distribution and sale of infra-red cabins* The Investigation and Prosecution Service of the Belgian Competition Authority (hereafter “BCA”) confirms that the BCA has conducted an inspection at the premises (...)

The US DOJ and FTC issue guidance signaling that they will bring enforcement actions for wage-fixing and no-poaching agreements under federal antitrust law
Vinson & Elkins
,
Morgan Lewis (Washington)
The DOJ will now treat wage-fixing and no-poaching agreements criminally. On October 20, the US Department of Justice (DOJ) and Federal Trade Commission (FTC) issued guidance (the Guidance) signaling that they will bring enforcement actions for wage-fixing and no-poaching agreements under (...)

The Chinese NDRC and Beijing Development Reform Commission investigate the industries of Housing and Urban-Rural development finding quality control price policy breaches
Hogan Lovells (Beijing)
,
University of Melbourne
,
China Competition Bulletin (Beijing)
The NDRC and the Beijing Development and Reform Commission investigated the concrete industry management practices of the Beijing Municipal Commission of Housing and Urban-Rural Development (Beijing Development Commission), in particular its quality control price policy. On 24 December 2014, (...)

The German Competition Authority cancels fines against sausage manufacturers due to restructuring measures (Zur Mühlen Group)
German Competition Authority (Bonn)
Proceedings against companies of ClemensTönnies group concluded – fines of 128 million euros cancelled due to restructuring measures* The Bundeskartellamt has closed its fine proceedings against two companies of the Zur Mühlen Group. The fines totalling 128 million euros which were imposed on (...)

The Italian Lazio Administrative Court upholds almost all the findings of the Competition Authority of a collusion in public contracts procurement (School Cleaning Services)
Desogus Law Office (Cagliari)
The Regional Administrative Court for Latium (the Court) has recently handed down four judgments on the appeals filed against the infringement decision made by the Italian Competition Authority (ICA) in the School Cleaning Services case . By this decision the ICA found that Consorzio Nazionale (...)

The Italian Supreme Court rules that the reorganization of the Italian distribution network of a car manufacturer does not breach competition law (Volkswagen)
Desogus Law Office (Cagliari)
By the recent Volkswagen Group Italia (VGI) judgement , the Italian Supreme Court or Court of Cassation (the Court) has ruled that the plan for the reorganization of its Italian distribution network implemented by a German car manufacturer did not breach competition. The Court considered the (...)

The Turkish Competition Authority decides that recommending the use of a certain engine oil brand in authorised service centres does not amount to a vertical restraint (Castrol / Dogus Oto)
University of Sussex (Brighton)
This case note analyses the decision of the Turkish Competition Authority (TCA) in which it has decided that recommending the use of only Castrol branded engine oils in service centres authorised by Volkswagen and Dogus Oto, coupled with the practice of voiding the manufacturer’s warranty for (...)

The Clinton campaign publishes a fact sheet providing insight into how a Clinton Administration would approach antitrust enforcement
Steptoe & Johnson (Washington)
Every presidential election season, antitrust attorneys hear one question more than any other from clients: “Do you think that the election will have an effect on antitrust enforcement?” This election year, the answer from most lawyers has very likely been something similar to: “If Trump is (...)

The US Court of Appeals for the Seventh Circuit considers potential discrimination between taxis and transportation network providers (Illinois Transport Association / City of Chicago)
Office of Competition and Consumer Protection (Warsaw)
Sharing and traditional economy: matter of substitutability ... between cats and dogs?* Sharing economy firms are disrupting traditional industries across the globe. As Tom Goodwin once put it: “Uber, the world’s largest taxi company, owns no vehicles. Facebook, the world’s most popular media (...)

The US Federal Trade Commission issues report on patent assertion entities
Rutgers University (New Jersey)
On October 6, 2016, the Federal Trade Commission (FTC) issued its long-awaited report on patent assertion entities (PAEs). Sometimes called “patent trolls,” these actors have elicited fierce debate, with critics lamenting their ability to demand ransom money and hold up an industry while (...)

Unilateral Practices

The Italian Competition Authority launches an investigation into competition law breaches and personal data (WhatsApp)
White & Case (Milan)
Misleading Terms & Conditions and Unfair Contract Terms: The Italian Competition Authority Opens Two Investigations against WhatsApp Inc.* On 28 October 2016, the Italian Competition Authority (the “Authority”) opened two investigations against WhatsApp Inc. for alleged unfair commercial (...)

The Russian Competition Authority fines a supplier of water for abuse of dominance (Sevkavkazenegro)
Russian Federal Antimonopoly Service (Moscow)
Five fines upon a monopolist* On 26 October, the Office of the Federal Antimonopoly Service in the Republic of North Ossetia – Alania imposed five fines upon “Sevkavkazenegro” JSC, totalling 2,812,500 RUB. The penalty is imposed for abusing dominance. In April 2015, “Sevkavkazenegro” JSC (...)

The Advocate General Wahl recommends that the EU Court of Justice grant an appeal against the judgement of the General Court, which had upheld a decision of the Commission imposing a fine of € 1.06 billion for abuse of a dominant position (Intel)
Van Bael & Bellis (Brussels)
On 20 October 2016, Advocate General Wahl rendered his opinion on Intel’s appeal before the Court of Justice of the European Union (“CJEU”) against the judgement of the General Court, which had upheld a decision of the European Commission of 13 May 2009 imposing a fine of € 1.06 billion for abuse (...)

The EU Court of Justice Advocate General Wahl delivers his opinion in a case regarding rebates and calls for a new approach to Article 102 (Intel)
Skadden, Arps, Slate, Meagher & Flom (Brussels)
Call for a common-sense approach to Article 102 - Advocate General Wahl on Intel* If AG Kokott in Post Danmark II was a 102 hawk – ordoliberal-redux, fossilizing form over function, economics on the “too difficult pile” for authorities and courts – then AG Wahl firmly sets out his stall as the 102 (...)

The French Supreme Court confirms fines imposed on undertaking for abusive limitation of generic entry (Sanofi-Aventis)
Van Bael & Bellis (Brussels)
On 18 October 2016, the French Supreme Court upheld the decision of the French Competition Authority (“FCA”) which had fined the pharmaceutical company Sanofi-Aventis over € 40 million for having abused its dominant position on the market for the active ingredient clopidogrel. Sanofi-Aventis was (...)

The Canadian Competition Tribunal turns down leave application on refusal to deal (CarGurus)
Steve Szentesi Law Corporation (Vancouver)
Competition Tribunal Denies Car Listing Refusal to Deal Leave Application and Establishes New Price Maintenance Law* On October 14, 2016 the Canadian Competition Tribunal (“Tribunal”) released an important Competition Act (“Act”) private application leave case (see:CarGurus Inc v Trader (...)

The Canadian Competition Tribunal denies leave to commence a private application in a refusal to deal case (CarGurus)
Cassels Brock (Toronto)
Used car listing website operator CarGurus Inc.’s attempt to force rival Trader Corporation to supply it with vehicle listing data has encountered a dead end as the Competition Tribunal denied it leave to commence a private application under several provisions of the Competition Act. This (...)

The Kunming Intermediate People’s Court decides a refusal to purchase in the market of refined oil not to be anti-competitive (Yunnan Yingding Biological Energy / Sinopec)
Hogan Lovells (Beijing)
,
University of Melbourne
,
China Competition Bulletin (Beijing)
On 8 October 2016, the Kunming Intermediate People’s Court amended its first-instance decision in the refusal to deal dispute between Yunnan Yingding Biological Energy, a biodiesel company, and Sinopec’s branch in Yunnan. In December 2014, the court had originally decided the case in the (...)

The Indian Competition Authority opens investigation into abuse of dominance by national gas supplier against its customers (Rico Auto / Omax Autos / Rico Castings / GAIL Gas Authority of India)
Vaish Associates, Advocates (New Delhi)
CCI initiates investigation against Gas Authority of India Limited (GAIL) for alleged abuse of dominance* CCI by its order dated October 3, 2016 has directed investigation against GAIL for alleged abuse of dominant position in relation to gas supply agreements (GSAs) with its customers. The (...)

Mergers

The French Competition Authority clears a merger on the end of line products and travel services markets (Bazarchic / Galeries Lafayette)
French Competition Authority (Paris)
The Autorité de la concurrence clears the acquisition of the Bazarchic by the Galeries Lafayette group* The Galeries Lafayette group notified the Autorité de la Concurrence on 27 September 2016 of its intention to acquire the Bazarchic Company. After considering the transaction’s effects on the (...)

The French Competition Authority clears a merger subject to remedies in the airports market (Aéroports de Lyon / Vinci Airports)
French Competition Authority (Paris)
The Autorité de la concurrence clears the acquisition of Aéroports de Lyon by Vinci Airports, subject to commitments* On 6 September 2016, Vinci Airports, a subsidiary of the Vinci group, notified the Autorité de la concurrence of its acquisition of sole control of Aéroports de Lyon, the company (...)

The German Competition Authority clears a merger, subject to remedies, in the food retail market (Coop / Rewe)
German Competition Authority (Bonn)
Bundeskartellamt clears acquisition of Coop by Rewe subject to conditions* The Bundeskartellamt has cleared the acquisition of the northern German food retailer Coop eG, Kiel, by REWE Markt GmbH, Cologne, subject to conditions. Coop operates around 200 supermarkets in the federal states of (...)

The EU Commission clears a merger, subject to remedies, in the alumina sector (Alteo ARC and Alufin / Imerys)
DG COMP (Brussels)
Mergers: Commission approves acquisition of Alteo ARC and Alufin by Imerys, subject to conditions* The European Commission has cleared under the EU Merger Regulation the proposed acquisition of Alteo ARC and Alufin by Imerys of France. The clearance is conditional on the divestment of Alteo (...)

The EU Commission clears a merger, subject to remedies, in the laser manufacturing sector (Rofin-Sinar / Coherent)
DG COMP (Brussels)
Mergers: Commission approves acquisition of lasers supplier Rofin-Sinar by Coherent, subject to conditions* The European Commission has cleared under the EU Merger Regulation the proposed acquisition of US and German-based Rofin-Sinar by Coherent of the US. Both are global suppliers of lasers. (...)

The EU Commission clears acquisition of global laser manufacturer by its leading competitor, subject to conditions (Coherent / Rofin-Sinar)
DG COMP (Brussels)
Coherent/Rofin-Sinar: Merger between leading CO2 laser suppliers cleared in phase I subject to conditions* In a nutshell: After the Bundeskartellamt had prohibited Coherent’s acquisition of Excel (now Synrad) in 2006, Coherent announced in 2016 its intention to acquire Rofin-Sinar; another (...)

The EU Commission invites third party comments on proposed acquisition in information technology sector (Microsoft / Linkedin)
Fieldfisher (London)
,
Fieldfisher (London)
Microsoft/LinkedIn: could Big Data be a Big Problem?*On 14 October 2016, Microsoft’s $26.2 billion acquisition of LinkedIn was notified to the European Commission for merger clearance. The EU regulator’s initial deadline to decide whether to approve the deal or refer it for in-depth (...)

The UK Competition Authority orders structural remedies to clear a merger on the market of energy trading services (Intercontinental Exchange / Trayport)
Van Bael & Bellis (Brussels)
On 17 October 2016, the UK Competition and Markets Authority (“CMA”) ordered Intercontinental Exchange Inc. (“ICE”) to sell Trayport to a new owner, to be approved by the CMA, in order to preserve competition on the market for the supply of certain energy trading services. ICE is the largest (...)

The Indian Competition Authority approves an internal restructuring of healthcare conglomerate’s three companies into two companies with clearer business verticals (Fortis Healthcare / Fortis Malar Hospital / SRL)
Vaish Associates, Advocates (New Delhi)
CCI approves international organization within the Fortis Group* CCI vide its order dated October 14, 2016, has given the approval to the internal re-organization of the hospitals and diagnostics business of Fortis Group into separate verticals. Prior the proposed combination, the healthcare (...)

The EU Commission opens an in-depth investigation concerning a merger on grey cement market in Croatia (HeidelbergCement / Schwenk)
DG COMP (Brussels)
Mergers: Commission opens in-depth investigation into HeidelbergCement and Schwenk’s joint acquisition of Cemex Croatia* The European Commission has opened an in-depth investigation to assess whether the proposed acquisition of Cemex Croatia by HeidelbergCement and Schwenk is in line with the (...)

The EU Commission seeks feedback on procedural aspects of EU merger control
Van Bael & Bellis (Brussels)
On 7 October 2016, the Commission published an online survey to collect views on certain procedural and jurisdictional aspects of EU merger control. According to the Commission, the purpose of the survey is to gather information on particular aspects of the performance of EU merger control. The (...)

The EU Commission launches a consultation on aspects of EU merger control
Norton Rose Fulbright (Brussels)
EU Commission consults on merger control reform* The EU Commission recently launched a consultation on ‘procedural and jurisdictional aspects of EU Merger Control’ (the Consultation), which most notably proposes the introduction of a deal-size threshold in the EU Merger Regulation (EUMR) to (...)

The Indian Competition Authority clears acquisition of sole ownership over automation solutions provider by private equity group (Cortes NP Acquisition Corporation / ASCO Power GP / Emerson Network Power Business / Platinum Equity Group)
Vaish Associates, Advocates (New Delhi)
CCI approves acquisition of sole interest Emerson Network Power Business (ENP) by Platinum Equity Group* CCI by its order dated October 5, 2016 has approved the aforementioned combination. The proposed combination relates to acquisition by Platinum Equity Group (Platinum) of 85% equity (...)

The EU Commission clears a merger, subject to remedies, in the market of train equipments (Wabtec / Faiveley)
DG COMP (Brussels)
Mergers: Commission approves acquisition of Faiveley by Wabtec, subject to conditions* Brussels, 4 October 2016 After an in-depth investigation under the EU Merger Regulation, the European Commission has cleared the proposed acquisition of Faiveley Transport of France by US-based Wabtec. The (...)

The EU Commission clears acquisition between two of the world’s largest rail equipment manufacturers, subject to divestment of the overlapping friction materials business (Wabtec / Faiveley)
DG COMP (Brussels)
,
DG COMP (Brussels)
,
DG COMP (Brussels)
Wabtec/Faiveley - Braking News: Commission conditionally clears acquisition in train equipment sector* In a nutshell: The Commission cleared the acquisition of Faiveley Transport by Wabtec, subject to conditions. This case required the assessment of the effects of a merger with a potential (...)

State Aid

The EU Court of Justice rules that the extension of existing State aid must be considered as the alteration of that aid and is therefore subject to the obligation of prior notification as new aid (DEI / Alouminion tis Ellados)
Liege Competition and Innovation Institute
,
Liège University - IEJE
The CJEU’s Judgment provides additional clarification on the effects of the extension of the duration of an existing aid measure. The CJEU - annulling a Judgment of the EU General Court (GC) - rules that the extension of the duration of existing aid measure by a national court must be qualified (...)

The EU General Court upholds a Commission decision finding that a Danish aid scheme in favour of the print media sector is compatible with the internal market (Søndagsavisen)
College of Europe (Bruges)
* Article published on StateAidHub (click here), 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 relationships (...)

The EU Commission finds that a State guarantee on a bond to be issued by a Greek bank to improve its liquidity is aid compatible with the internal market (Attica Bank)
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 Croatian scheme to save banks in financial distress is compatible with both State aid rules and the Directive on bank recovery and resolution (Resolution scheme for small credit institutions with total assets below EUR 1.5 billion)
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 EU Commission plans new antitrust law under 2017 work programme
Van Bael & Bellis (Brussels)
On 25 October 2016, the European Commission published its annual Work Programme: Delivering a Europe that protects, empowers and defends. As part of the Commission’s plans for creating a deeper and fairer internal market with a strengthened industrial base, antitrust enforcers are expected to (...)

The EU Commission publishes study on the passing-on of overcharges
Van Bael & Bellis (Brussels)
On 25 October 2016, the European Commission’s Directorate-General for Competition (“DG Comp”) published an expert study on potential approaches for national courts to assess the passing-on of overcharges in competition litigation (“the Study”). The Study aims to provide judges and practitioners (...)

The EU Court of Justice rules that the creation of a single agency grouping sector regulators and the competition authority breaches EU law
Callol, Coca & Asociados (Madrid)
The European Court of Justice (ECJ) rules that the creation of the current SCA breached EU law (ECJ Judgment of 19 October 2016 (Case C-424/15)). The ECJ has issued its ruling on a request by the Supreme Court regarding the compatibility of the SCA creation back in 2013, when Spain integrated (...)

The US FTC releases long-awaited report on patent assertion entities
Jones Day (Washington DC)
,
Jones Day (Cleveland)
Three years after initiating an extensive sector study under section 6(b) of the FTC Act, the Federal Trade Commission has issued its report on the activities of patent assertion entities ("PAEs"). The report, titled Patent Assertion Entity Activity: An FTC Study ("PAE Report"), sets forth the (...)

Regulatory

The French Competition Authority publishes an opinion on the freedom of establishment for lawyers at the French Administrative Supreme Court and French Supreme Court
French Competition Authority (Paris)
Freedom of Establishment for lawyers at the French Administrative Supreme Court and the French Supreme Court* The Autorité de la concurrence issues an opinion on the freedom of establishment for lawyers at the French Administrative Supreme Court and French Supreme Court. In order to improve (...)

Public sector

The US FTC and US DOJ jointly issue Antitrust guidance for human resource professionals
Skadden, Arps, Slate, Meagher & Flom (New York)
,
Skadden, Arps, Slate, Meagher & Flom (New York)
,
Skadden, Arps, Slate, Meagher & Flom (Washington DC)
On October 20, 2016, the Antitrust Division of the Department of Justice (DOJ) and the Federal Trade Commission (FTC) jointly issued new guidance designed to help human resources professionals and their companies understand the potential antitrust implications of their work. The guidance (...)

All issues

  • Latest News issue 
  • All News issues
  • Latest Special issue 
  • All Special issues