September 2003

Anticompetitive practices

 The EU Court of First Instance delivers its judgment in the TACA case upholding the Commission decision concerning infringements of articles 81 and 82 of the EC Treaty (Atlantic Container Line)
European Commission - DG COMP (Brussels)
Belgium 8 contributions 13113 visits
"The TACA judgment: lessons learnt and the way forward"* Introduction On 30 September 2003, the Court of First Instance (CFI) delivered a long-awaited judgment in the Transatlantic Conference Agreement (‘TACA’) case. The case concerned the organisation of containerised liner shipping services (...)

The German Competition Authority imposes fines on two manufacturers for influencing retail sale prices in an anticompetitive way (Swissphone / Ansmann)
Linklaters (Düsseldorf)
Germany 17 contributions 18769 visits
Description of the impugned case One case deals with in indirect RPM clause: the producer of telecommunication equipment provided his dealers with rebates under the condition that they would maintain the recommended sale prices (Swissphone). In the other case, the producer of batteries and (...)

The Japan Fair Trade Commission issues a consent decision concerning bidding for paving works (Noguchi Hodo)
Japan Fair Trade Commission (Tokyo)
Japan 130 contributions 23030 visits
Consent Decision to Noguchi Hodo K．K.* The JFTC had decided to initiate hearing procedures against Noguchi Hodo K.K. on 20 June 2003 and has been having examiners conduct the procedures. The JFTC received a request for consent decision and plans for specific measures from Noguchi Hodo K.K. (...)

The EU Court of Justice hands down its ruling dismissing an appeal by a motor vehicle manufacturer against a decision of the Court of the First instance that approved the existence of anticompetitive behavior (Volkswagen)
European Court of Justice (Luxembourg)
Luxembourg 328 contributions 95795 visits
Case C-338/00 P Volkswagen AG v Commission of the European Communities* 1. Where an appeal merely repeats or reproduces verbatim the pleas in law and arguments previously submitted to the Court of First Instance, without even including an argument specifically identifying the error of law (...)

The US Court of Appeals for the Second District invalidates two cards companies rules that prohibit member banks (Visa / MasterCard)
Sidley Austin (Washington)
United States 14 contributions 5519 visits
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Hughes Hubbard & Reed (Washington)
United States 9 contributions 3225 visits
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Stanford University
United States 14 contributions 12358 visits
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Background On September 17, 2003, the Second Circuit issued an important decision in U.S. v. Visa U.S.A., Inc., 2003 WL 22138519 (2d Cir. Sept. 17, 2003). The court affirmed a district court ruling invalidating Visa and Mastercard rules that prohibit member banks from issuing American (...)

The US Court of Appeals holds that if the terms of pay for delay settlements between the brand name and generic pharma companies are within the "scope of the patent" antitrust law is not implicated (Abbott / Geneva / Zenith)
Hill, Kertscher & Wharton (Atlanta)
United States 1 contribution 392 visits
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Eversheds Sutherland (Atlanta)
United States 1 contribution 392 visits
A recent 11th Circuit case, Valley Drug Co. v. Geneva Pharmaceuticals, Inc., sheds light on the complex intersection of patent and antitrust law in the context of a settlement agreement between a name brand pharmaceutical manufacturer and two allegedly infringing generic manufacturers that (...)

The US Court of Appeals for the Eleventh Circuit holds that a reverse payment agreement between a brand name pharmaceutical company and a potential competitor is to be analyzed under the "scope of the patent" test to determine antitrust liability (Abbott / Geneva / Zenith)
United First Partners (New York)
United States 11 contributions 6991 visits
Introduction In Valley Drug Co. v. Geneva Pharm., Inc. (“Valley Drug”), the Eleventh Circuit adopted the “scope of the patent” test to evaluate validity of reverse payment agreements between a brand-name pharmaceutical manufacturer and generic would-be competitors. The court viewed the case in (...)

The Japan Fair Trade Commission imposes surcharges on participants in bidding for landscaping works (Kanto Landscaping and Construction Cooperative)
Japan Fair Trade Commission (Tokyo)
Japan 130 contributions 23030 visits
JFTC issues decision to order surcharges to Kanto Landscaping and Constructing Cooperative．* The JFTC, on 8 September 2003, issued a decision to Kanto Gardening and Construction Cooperative in accordance with Section 54-2 (1) of the Antimonopoly Act after the hearing procedures initiated on 22 (...)

The French Competition Council authorizes a franchisor to recommend a maximum resale price on its franchisees (Plus International)
Verisure Securitas Direct (Paris)
France 7 contributions 5179 visits
Description of the impugned case In a case of a franchising agreement, the franchisor recommended to franchisees to respect a maximum price during promotional and non-promotional period. The French competition Council considers that the pricing policy implemented by the franchisor was not (...)

The German Federal Cartel Office imposes a fine on the producer of electrical products for having concluded anticompetitive agreements on the pricing of certain products, for having threatened third parties with disadvantages in order to induce them to behave in an anticompetitive manner and for having illegally recommended certain retail prices (Akkutechnische Erzeugnisse)
Linklaters (Düsseldorf)
Germany 17 contributions 18769 visits
Description of the impugned case The case deals with both, a straightforward RPM system and indirect RPM clauses. On the one hand, the producer directly agreed on a certain pricing structure with ebay dealers, thereby infringing the (at that time applicable) German law prohibition on the fixing (...)

Unilateral Practices

 The EU General Court upholds the Commission’s decision to fine a French multinational tyre manufacturing company for practices which are unfair to its dealers (Michelin)
General Court of the European Union (Luxembourg)
Luxembourg 61 contributions 29054 visits
The court of first instance upholds the commission’s decision to fine michelin for practices which are unfair to its dealers* A company in a dominant position, which operates a system of loyalty rebates and bonuses for its dealers, thereby strengthens its position to the detriment of other (...)

The Polish Competition Authority establishes that a town has abused dominant position by limiting the number of resellers for public transportation (Commune W.)
European Commission - DG COMP (Brussels)
France 37 contributions 155553 visits
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Orrick, Herrington & Sutcliffe (Washington)
United States 9 contributions 41452 visits
On September 19th 2003, the President of the Office for the Competition and Consumers Protection (hereafter, OCCP President or, President of the Office) decided that the practice of Commune W. to limit the number of persons eligible to sell fixed term tickets for the city public transportation (...)

The French Competition Authority sanctions the telecommunication incumbent for having broken injunctions ordered to address an abuse of a dominant position on the market for trade in telephone subscriber lists (France Télécom)
French Competition Authority (Paris)
France 727 contributions 380527 visits
Universal directory : France Télécom sanctioned by the Conseil de la concurrence for breaching an injunction.* Following a referral by the companies Sonera France (now Fonecta) and Scoot France, the Conseil de la concurrence imposed fines totalling 40 million Euros as part of breach of (...)

The EU Court of Justice rules that in the context of the application of national competition law, the provisions on the free movement of goods do not preclude the competent authorities of a Member State from prohibiting a dairy cooperative that enjoys market power from entering into contracts with undertakings (Milk Marque)
European Court of Justice (Luxembourg)
Luxembourg 328 contributions 95795 visits
MILK MARQUE AND NATIONAL FARMERS’ UNION JUDGMENT OF THE COURT 9 September 2003* 1. Articles 32 to 38 EC, Regulation No 26 applying certain rules of competition to production of and trade in agricultural products and Regulation No 804/68 on the common organisation of the market in milk and (...)

Mergers

 The EU Court of First Instance dismisses an appeal challenging a Commission’s decision to refer a merger to the Spanish competition authorities (Cableuropa)
European Court of Justice (Luxembourg)
Luxembourg 328 contributions 95795 visits
Joined Cases T-346/02 and T-347/02 Cableuropa SA and Others v Commission of the European Communities* 1. For a Community measure to be of direct concern to a natural or legal person within the meaning of the fourth paragraph of Article 230 EC, it must directly affect the applicant’s legal (...)

The EU Court of First Instance rejects an appeal by a media company against the Commission’s decision to approve a third party involvement in a joint venture operation (ARD)
European Court of Justice (Luxembourg)
Luxembourg 328 contributions 95795 visits
Case T-158/00 Arbeitsgemeinschaft der öffentlich-rechtlichen Rundfunkanstalten der Bundesrepublik Deutschland (ARD) v Commission of the European Communities* 1. Persons other than those to whom a decision is addressed may claim to be individually concerned only if the decision affects them by (...)

The EU Court of First Instance states that an action for annulment can be brought by an operator present in neighbouring upstream or downstream markets in the Pay-TV sector (ARD)
European Court of Justice (Luxembourg)
Luxembourg 328 contributions 95795 visits
Case T-158/00 Arbeitsgemeinschaft der öffentlich-rechtlichen Rundfunkanstalten der Bundesrepublik Deutschland (ARD) v Commission of the European Communities* 1. Persons other than those to whom a decision is addressed may claim to be individually concerned only if the decision affects them by (...)

The EU Commission conditionally clears a merger between French and Canadian companies in the market for aluminium products (Pechiney / Alcan)
JG Associates (Brussels)
193 contributions 62760 visits
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European Commission - DG COMP (Brussels)
Belgium 148 contributions 49508 visits
"Merger Control: Main developments between 1st September 2003 and 31st December 2003"* On 29 September the Commission cleared the proposed acquisition of French aluminium producer Pechiney by Alcan of Canada. The transaction was notified to the Commission on 14 August. Canada’s Alcan and (...)

The Lithuanian Competition Council cleared a merger in the markets of concrete with remedies, including commitment of non-discriminatory pricing and various contractual provisions (Betoneta / Markuèiai)
Amazon (Singapore)
Singapore 18 contributions 38532 visits
The operation By a decision dated 25 September 2003, the Lithuanian Competition Council authorized in phase II the acquisition by UAB Betoneta (« Betoneta ») of 100 % shares of AB Markuèiai (« Markuèiai »). The market(s) The relevant markets have been defined by the Council as markets for concrete (...)

The EU Court of Justice finds that a complaint made by two undertakings in the media sector is inadmissible because the limitation period has expired (Schlüsselverlag)
European Court of Justice (Luxembourg)
Luxembourg 328 contributions 95795 visits
Case C-170/02 P Schlüsselverlag J.S. Moser GmbH and Others v Commission of the European Communities* 1. The Commission cannot refrain from taking account of complaints from undertakings which are not party to a concentration capable of having a Community dimension. Indeed, the implementation (...)

The Turkish Competition Authority cleared a merger in the chemicals sector subject to divestiture (DSM-Roche Vitamins)
Esin (Istanbul)
Turkey 51 contributions 94147 visits
The operation DSM is active in the development and production of chemical and life science products including feed enzymes, performance materials and polymers and industrial chemicals. DSM has a subsidiary in Turkey named DSM Food Specialities Ltd. Sti (“DSM Turkey”) as well as a liaison office (...)

The French Minister of Economy clears a merger subject to remedies in the market of documents and cheques (Experian Holding France / Atos Investissement)
French Competition Authority (Paris)
France 83 contributions 289367 visits
The operation The Experian company Acquired the document and cheque processing business of Atos. The market The relevant market has been defined as the cheque processing market. Remedy 1: Unenforceability of the non-competition clause The Minister noted that the transaction would lead to (...)

The Czech Competition Office clears a merger in the TV broadcasting and TV advertising markets subject to maintenance of third parties access under existing business terms and conditions (PPF / Nova Holding)
Prague City Hall
13 contributions 29602 visits
The operation In merger concerned, PPF (CYPRUS) LIMITED ("PPF"), and three individuals acquired joint control over NOVA HOLDING, a.s. ("Nova Holding") under a shareholders agreement, which followed the share purchase agreement and the related agreement on transfer of rights and obligations (p. (...)

The Lithuanian Competition Council cleared an acquisition in the market of retail trade in oil products with remedies, including commitment not to merge into one company (Maþeikiø nafta / Uotas)
Amazon (Singapore)
Singapore 18 contributions 38532 visits
The operation By a decision dated 3 September 2003, the Lithuanian Competition Council authorized in phase I the acquisition by AB Maþeikiø nafta (« Maþeikiø nafta ») of 100 % shares of UAB Uotas (« Uotas ») (increase of shareholding from 85 % to 100 %). The market(s) The relevant market has been (...)

The French Minister of Economy clears with structural and behavioral remedies a merger in the refrigerated body manufacturing sector (Lamberet / Chereau)
French Competition Authority (Paris)
France 83 contributions 289367 visits
The operation Through this transaction, Lamberet acquired the sole control of Chereau. Both companies offered a range of industrial vehicles specially designed for cold transport. The market(s) concerned by remedy(ies) The Minister assessed the effects of the merger in relation to the (...)

The EU Commission approves, subject to remedies, a merger in the medical devices market giving a practical example of the use of quantitative analyses in merger control (GE Medical Systems / Instrumentarium)
RBB Economics (Brussels)
Belgium 19 contributions 36533 visits
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European Commission - DG COMP (Brussels)
Belgium 14 contributions 19113 visits
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Gardyn (Washington)
United States 4 contributions 1873 visits
"GE/Instrumentarium: a practical example of the use of quantitative analyses in merger control"* On 2 September 2003, the European Commission approved, subject to conditions, the acquisition by General Electric Medical Systems (‘GE’) of the Finnish firm Instrumentarium. The Commission was (...)

The EU Commission conditionally clears a merger in the medical devices market (GE Medical Systems / Instrumentarium)
JG Associates (Brussels)
193 contributions 62760 visits
,
European Commission - DG COMP (Brussels)
Belgium 148 contributions 49508 visits
"Merger Control: Main developments between 1st September 2003 and 31st December 2003"* In September the Commission approved, subject to conditions, the acquisition by GE Medical Systems of the Finnish firm Instrumentarium. The proposed acquisition was notified to the Commission on 28 February (...)

Procedures

 The EU Court of Justice issues a preliminary ruling which clarifies that EU competition law takes precedence over national legislation specifically with regard to price-fixing or market-sharing arrangements (Consorzio Industrie Fiammiferi)
European Court of Justice (Luxembourg)
Luxembourg 328 contributions 95795 visits
Consorzio Industrie Fiammiferi (CIF) v Autorità Garante della Concorrenza e del Mercato* 1. Where undertakings engage in conduct contrary to Article 81(1) EC and where that conduct is required or facilitated by national legislation which legitimises or reinforces the effects of the conduct, (...)

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