October 2018

Anticompetitive practices

The Tyumen Regional Arbitration Court confirms the decision of the Russian Competition Authority regarding a cartel involving two manufacturers of soil heat stabilizers (Konar / Fundamentstroiarkos)
Russian Federal Antimonopoly Service (Moscow)
Court confirmed a cartel at “Transneft” auction* Manufacturers of soil heat stabilizers agreed about auction behaviour to win contracts at the highest price The total revenues of the violators from selling the anticompetitive agreement exceeded 15 billion RUB. Tyumen OFAS proved the cartel in (...)

The Turkish Competition Authority announces the conclusion of its preliminary inquiry and finds no price fixing in the baby food products market (Numil / Nestlé / Montero / Kopas / Hipp / Hero / Abbott)
ACTECON (Istanbul)
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ACTECON (Istanbul)
Introduction In February 2019, the Turkish Competition Authority (“TCA”) released the public version of its decision with regard to its preliminary inquiry against the undertakings producing and/or selling baby food products. Contrary to the price fixing allegations, the TCA found that the (...)

The French Competition Authority imposes fine of € 7 million on outdoor power tool manufacturer for de facto online sales restrictions (Stihl)
Van Bael & Bellis (Brussels)
On 24 October 2018, the French competition authority (the “FCA”) fined Stihl, a German manufacturer of outdoor power tools, € 7 million for, in effect, prohibiting online sales of chainsaws, brush cutters, pole saws and electric pruners. Stihl operated a selective distribution system, under which (...)

The UK Competition Authority launches a new campaign "Stop Cartels" to educate businesses about anticompetitive practices and encourage leniency
Bryan Cave Leighton Paisner (London)
COMPETITION & MARKETS AUTHORITY GETS TOUGH ON CARTELS* On 22 October 2018, the UK’s Competition and Markets Authority (CMA) announced that it had launched a new “Stop Cartels” campaign to educate businesses about anti-competitive practices and encourage people to come forward if they suspect (...)

The Botswana Competition Authority rejects an exemption application brought by two fast moving consumer good companies (Choppies / Payless)
Primerio (Washington)
BOTSWANA COMPETITION AUTHORITY: EXCEPTION APPLICATION BACKFIRES FOR CHOPPIES-PAYLESS BUYING GROUP* The Competition Authority of Botswana (CA) rejected an exemption application brought by two FMCG players. The applicants, Choppies Distribution Centre and Payless Supermarkets, sought to justify (...)

The Czech Regional Court in Brno validates the legality of two dawn raids conducted by the Competition Authority that led to the discovery of cartels (AV MEDIA)
Skils (Prague)
Regional Court in Brno (RCB) dealt with two claims by AV MEDIA, a.s. challenging dawn raids conducted by the Czech Office for Protection of Competition (Office) at its premises in March and April 2018. The RCB found both dawn raids lawful and rejected both claims. Summary of Proceedings This (...)

The UK Competition Authority issues a study into pricing algorithms in order to identify whether they could be used to support illegal practices
British Competition Authority - CMA (London)
Algorithm research builds on work in digital markets* The CMA has published a study into pricing algorithms and whether they could be used to support illegal practices. The research increases the CMA’s expertise at a time of widespread scrutiny of pricing algorithms and how they interact with (...)

The French Competition Authority fines a wholesaler-importer and its parent company for continuing to implement exclusive import agreements overseas, after the Lurel Act came into force (General Importand)
French Competition Authority (Paris)
Exclusive distribution of consumer goods in Wallis-and-Futuna* The Autorité de la concurrence has fined the wholesaler-importer General Importand its parent company for continuing to implement exclusive import agreements, after the Lurel Act came into force. The "Lurel Act" has banned any (...)

The Slovak Competition Authority fines companies for bid-rigging in the construction sector (Drienovecké / Drienovec)
Slovak Competition Authority
CARTELS: AMO SR imposed fines for cartel agreement between undertakings in the field of constructing industry* On 5 October 2018 the Antimonopoly Office of the Slovak Republic, the Division of Cartels, (hereafter "the Office") issued a decision imposing fines totalling EUR 307 546 on the (...)

The South African Competition Tribunal rejects a tender collusion allegation, as the tender was a sham (Geometry / Vaxiprox)
Anheuser-Busch InBev (Johannesburg)
The Competition Commission of South Africa (the Commission) sought an order from the Competition Tribunal of South Africa (the Tribunal) declaring that two brand activation companies (Geometry Global (Pty) Ltd (Geometry) and Vaxiprox (Pty) Ltd (Vaxiprox)) had colluded on a tender issued by a (...)

Unilateral Practices

The French Competition Authority fines a manufacturer for preventing its authorized distributors from selling its products online implementing ECJ Coty ruling (Stihl)
French Competition Authority (Paris)
Online retail of outdoor power equipment* The Autorité de la concurrence fines the manufacturer Stihl 7 million euros for having prevented its authorized distributors from selling its products online Background Following an investigative report from the DGCCRF, the Autorité de la (...)

The UK Court of Appeal upholds a decision qualifying an essential patent offer to be FRAND (Huawei / Unwired Planet International)
Jindal Global University (Sonipat)
UK COURT OF APPEAL UPHOLDS FRAND INJUNCTION* Last week, the UK Court of Appeal upheld the findings of the High Court in an important case regarding standard essential patents (SEPs). Of particular significance, the Court of Appeal upheld the finding that the defendant, an implementer of SEPs, (...)

The Turkish Competition Authority fines an online platform service provider for excessive pricing (Sahibinden)
Boğaziçi University (Istanbul)
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ACTECON (Istanbul)
The Turkish Competition Authority (“TCA”) fined Sahibinden.com (online platform service provider) approx. EUR 1,525,801 for excessive pricing. The TCA initiated two full-fledged investigations against Sahibinden.com back in 2017. Consequently, the TCA concluded on 1 October 2018 that (...)

The Turkish Competition Authority finds that an online platform services for real estate and vehicle sales abused its dominant position through implementing excessive prices (Sahibinden)
ELIG Gürkaynak Attorneys-at-Law (Istanbul)
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ELIG Gürkaynak Attorneys-at-Law (Istanbul)
This case note analyses the Turkish Competition Board’s (“Board”) recently published Sahibinden.com decision of October 1st, 2018 numbered 18-36/584-285 in which the Board assessed whether Sahibinden Bilgi Teknolojileri Paz. ve Tic. A.Ş. (“Sahibinden.com”) –an online platform which acts as an (...)

Mergers

The EU Commission opens an in-depth investigation related to a merger on the steel supply market (Tata Steel / ThyssenKrupp)
DG COMP (Brussels)
Mergers: Commission opens in-depth investigation into new joint venture proposed by steel suppliers Tata Steel and ThyssenKrupp* The European Commission has opened an in-depth investigation to assess the proposed creation of a joint venture by Tata Steel and ThyssenKrupp, under the EU Merger (...)

The EU Commission clears a merger subject to remedies in the market of dietetic pet food sold by veterinarians (Mars Petcare / AniCura)
DG COMP (Brussels)
Mergers: Commission approves Mars’ acquisition of AniCura, subject to conditions* The European Commission has approved, under the EU Merger Regulation, the acquisition of AniCura, a veterinary clinic chain, by Mars, a supplier of pet food, including dietetic pet food. The approval is (...)

The Latvian Competition Authority fines a fuel retailer that submitted notification ten months after implementing a merger transaction for gun-jumping (Petrol Property / Vaizga)
Konkurences padome (Riga)
Latvian competition authority fines Lithuanian company UAB Vaizga for unnotified merger* On April, 2018, the Competition Council of Latvia (the CC) cleared the proposed acquisition of Latvian company SIA Petrol Property by UAB Vaizga. As the Lithuanian UAB Vaizga failed to submit merger (...)

The Egyptian Competition Authority imposes interim measures on the two ride-hailing applications available in Egypt to preserve the competitive structure of the market (Uber / Careem)
Egyptian Competition Authority (Cairo)
Egyptian Competition Authority (ECA) imposes Measures on Uber and Careem to regulate competition between them and safeguard the competitive structure of the market.
* Dr. Amir Nabil, Chairman of the Egyptian Competition Authority, said: “Uber and Careem are the only ride-hailing applications (...)

The Mexican Competition Authority accepts commitments by pharmaceutical companies to restore competition in the pharma market (Moench Coöperatif / Luis Doporto Alejandre)
Ritch Mueller (Mexico City)
Through a decision issued by the plenary session of Cofece on August 13, 2015 on case file CNT-074-2015 (the ’Decision’), the Mexican antitrust authority decided to unconditionally clear the acquisition, by Dutch fund Moench Coöperatif of a major pharmaceutical distributor in Mexico, Marzam. The (...)

The Irish Competition Authority announces that merger notification thresholds will be revised from 1 January 2019
Irish Competition Authority (Dublin)
Revised Merger Notification Thresholds* Following a public consultation reviewing certain provisions of the Competition Act 2002, the Department of Business, Enterprise and Innovation has issued a Ministerial Order revising the financial thresholds at which notification of a merger or (...)

The UK Competition Authority imposes structural remedies to clear a merger in the market of the supply of managed laundry services (JLA / Washstation)
British Competition Authority - CMA (London)
University laundry merger broken up by CMA* The CMA has decided that JLA must sell Washstation to preserve competition in the supply of managed laundry services to higher education providers. The decision by the Competition and Markets Authority (CMA) comes following an in-depth investigation (...)

The US Department of Justice clears a merger between two vertically linked businesses in the healthcare sector due to sufficient competition in their respective markets subject to divestment of their horizontally overlapping business (CVS / Aetna)
Economists Incorporated (San Francisco)
Department of Justice Clears Merger of CVS and Aetna* The Department of Justice (DOJ) recently cleared the merger of CVS Health Corporation (CVS) and Aetna Inc. (Aetna), only requiring divestiture of Aetna’s horizontally overlapping Medicare Part D prescription drug plan business. Aetna is (...)

The US DoJ conditionally approves a merger in the healthcare industry (CVS / Aetna)
International Center for Law & Economics (Portland)
The DOJ’s approval of the CVS/Aetna Merger and vertical innovation by incumbents* Last week, the DOJ cleared the merger of CVS Health and Aetna (conditional on Aetna’s divesting its Medicare Part D business), a merger that, as I previously noted at a House Judiciary hearing, “presents a creative (...)

The US District Eastern Court of Virginia orders a defendant in private antitrust litigation to divest a manufacturing plant following a competitor’s merger challenge (Steves and Sons / Jeld-Wen)
Jones Day (Houston)
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Jones Day (Washington DC)
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Jones Day (Washington DC)
A federal district court has ordered a defendant in private antitrust litigation to divest a manufacturing plant following a competitor’s merger challenge. Although the decision is certain to be appealed, it may embolden customers or competitors wishing to challenge a transaction and create new (...)

State Aid

The EU Commission holds that the intervention of the French state to a phone company does not constitute state aid as it complies with the market economy investor principle (Orange)
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 opens an in-depth investigation into measures in favour of an airline company in Germany (Ryanair)
DG COMP (Brussels)
State aid: Commission opens in-depth investigation into measures in favour of Ryanair at Frankfurt-Hahn airport in Germany* The European Commission has opened an in-depth investigation to assess whether measures in favour of Ryanair at the German airport of Frankfurt-Hahn are in line with (...)

The EU Commission approves under EU State aid rules a measure to support electricity production from renewable sources in France
DG COMP (Brussels)
State aid: Commission approves €200 million in public support for renewable energy for self-suppliers of electricity in France* The European Commission has approved under EU State aid rules a measure to support electricity production from renewable sources for self-consumption in France until (...)

The EU Commission approves under EU State aid rules a €306 million aid for the construction of a section of motorway in Greece
DG COMP (Brussels)
State aid: Commission approves €306 million in Greek public funding for the construction of southern section of E65 motorway* The European Commission has approved under EU State aid rules Greek public funding of €306 million for the construction of the southern section of the Central Greece (...)

The EU Commission approves under EU State aid rules the extension of the existing Danish tonnage tax scheme to additional types of vessels
DG COMP (Brussels)
State aid: Commission approves extension of Danish tonnage tax scheme to new types of vessels* The European Commission has approved under EU State aid rules the extension of the existing Danish tonnage tax scheme to additional types of vessels. This will encourage ship registration in Europe (...)

The EU Commission approves under EU State Aid Rules a €125 million investment aid of Slovakia to an automotive company (Jaguar Land Rover)
DG COMP (Brussels)
State aid: Commission approves Slovakia’s €125 million investment aid to Jaguar Land Rover* The European Commission has concluded that Slovakia’s €125 million investment aid to Jaguar Land Rover is in line with EU State aid rules. The aid will contribute to the development of the region of Nitra, (...)

Procedures

The President of the EU General Court rejects an application to prevent publication of a Commission decision (EURIBOR Cartel)
Gomez Acebo & Pombo (Brussels)
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Gomez Acebo & Pombo (Brussels)
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Gomez Acebo & Pombo (Brussels)
On 7 December 2016, the European Commission adopted a decision whereby it fined Crédit agricole, JP Morgan Chase and another bank EUR 485 million for participating in the so-called EURIBOR cartel. The investigation of the Commission revealed that the banks in question had colluded on certain (...)

The EU Court of Justice holds that a jurisdiction clause is not excluded when it does not expressly refer to disputes relating to liability resulting from an abuse of dominant position (Apple / MJA)
McDermott Will & Emery (Paris)
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McDermott Will & Emery (Paris)
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McDermott Will & Emery (Brussels)
Application of Jurisdiction Clauses to Competition Damages Actions Depends on Cause of Action* Summary The European Court of Justice (ECJ) recently ruled that a jurisdiction clause does not need to refer expressly to disputes arising from a breach of competition law where damages are claimed (...)

The EU Court of Justice holds that claims alleging abuse of dominance could come within the terms of a jurisdiction clause even where the clause did not expressly refer to claims based on competition law (Apple MJA)
McCann FitzGerald (Dublin)
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McCann FitzGerald (Dublin)
Competition Disputes: Will a Jurisdiction Clause Govern Where They are Brought?* The European Court of Justice (CJEU) held recently in Apple Sales International v MJA acting as liquidator of eBizcuss.com that claims alleging abuse of a dominant position could come within the terms of a (...)

The EU Court of Justice rules that jurisdiction clauses subject to EU law may be enforced by member states in actions for damages for abuse of dominance (Apple / MJA)
Cleary Gottlieb Steen & Hamilton (Paris)
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Cleary Gottlieb Steen & Hamilton (Paris)
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Cleary Gottlieb Steen & Hamilton (London)
European Court of Justice Issues Important Judgment Related to Jurisdiction Clauses for Antitrust Actions* In a recent judgment providing a preliminary ruling in the case, Apple Sales International et al. v. EBizcuss.com (C-595/17, October 24, 2018), the Court of Justice of the European Union (...)

The EU Commission and Council discuss enhancements of national security screening of foreign direct investment (FDI)
Dechert (London)
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Dechert (Washington)
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Dechert (Brussels)
The EU has agreed in principle on a strengthened framework to ensure that foreign investment does not threaten security and public order, while keeping the EU open to foreign investment. The draft FDI Regulation does not go as far as introducing an EU screening mechanism whose decisions are (...)

Regulatory

The French Competition Authority issues an opinion on the freedom of establishment of lawyers at the French Administrative Supreme Court and the French Supreme Court
French Competition Authority (Paris)
Freedom of establishment of 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 of lawyers at the French Administrative Supreme Court and the French Supreme Court. To improve citizens’ (...)

The Australian Standing Committee on Economics publishes a report on the Australian Competition and Consumer Commission activities
King & Wood Mallesons (Sydney)
THE ACCC’S ANNUAL REPORT: THE YEAR IN REVIEW* On 15 October 2018, the Standing Committee on Economics (Standing Committee) published a report on the Australian Competition and Consumer Commission (ACCC), which details the ACCC’s performance and operations based on the ACCC’s 2017 Annual Report. (...)

The U.S. Congress implements a new law requiring drug manufacturers to disclose biologic patent settlement agreements to antitrust Authorities (Patient Right to Know Drug Prices Act)
Jones Day (Washington DC)
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Jones Day (Washington DC)
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Jones Day (Washington DC)
New Law Requires Disclosure of Biologic Patent Settlement Agreements to Antitrust Authorities* Last week, the Patient Right to Know Drug Prices Act ("Act") became law. The Act requires pharmaceutical companies to disclose to antitrust agencies agreements between biologic and biosimilar (...)

The Portuguese Competition Authority issues its final version of the Issues Paper “Technological Innovation and Competition in the Financial Sector in Portugal”
Portuguese Competition Authority (Lisbon)
The AdC has published the final version of the Issues Paper “Technological Innovation and Competition in the Financial Sector in Portugal”, in which warns of the risks in PSD2’s implementation* The AdC has approved the final version of the Issues Paper “Technological Innovation and Competition in (...)

Public sector

The EU Court of Justice decides that the three years of maximum exclusion for cartel members from public tenders starts to run with the decision of the investigating anti-trust authority (Vossloh Laeis / Stadtwerke München)
Noerr (Berlin)
Exclusion of Cartel Members from Public Tenders – ECJ to Clarify Key Issues* Sanctions for participating in cartels are manifold: fines and damages are feared foremost, followed by reputation losses. Another painful consequence is often overlooked at first glance: exclusion from public tenders (...)

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