September 2019

Anticompetitive practices

The Spanish Competition Authority publishes two different investigations in the chemical products and network of automatic cashiers sectors
Bird & Bird (Madrid)
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Bird & Bird (Madrid)
In September, the Spanish Competition Authority (CNMC) has launched two different antitrust investigations, one concerning chemical products and the other concerning the network of automatic cashiers (ATMs). From 17 to 19 September 2019, the CNMC carried out dawn raids at the premises of (...)

The French Competition Authority fines the Architects Professional Body for its anticompetitive agreement (Ordre des architectes)
French Competition Authority (Paris)
The Ordre des architectes is fined a total of €1.5 million for anticompetitive agreement* L’autorité de la concurrence fined the Ordre des architectes a total of €1.5 million for implementing anticompetitive practices. The Ordre des architectes set up, distributed and enforced a fee schedule (...)

The EU Commission fines canned vegetables cartelists an amount totalling €31.6 million (Coroos / CECAB)
Gomez Acebo & Pombo (Brussels)
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Gomez Acebo & Pombo (Brussels)
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Gomez Acebo & Pombo (Brussels)
Canned vegetables companies Coroos, Groupe CECAB and Bonduelle have been found to have participated in a cartel in the supply of canned vegetables to retailers and food service companies in the European Economic Area (“EEA”). In particular, the Commission’s investigation showed that the (...)

The Serbian Competition Authority issues its first decision granting an immunity from a fine of €500,000 to a cartel participant based on a leniency application (Konica Minolta distributors)
Schoenherr (Belgrade)
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Schoenherr (Belgrade)
Almost 10 years after the introduction of the leniency programme in Serbia, the Commission for Protection of Competition (’Commission’) adopted on 27 of September 2019 the first decision granting immunity from a fine to a cartel participant. This decision brings to life the 2009 statutory (...)

The Italian Supreme Court sheds light on the severance of anti-competitive clauses of a banking personal guarantee contract (De Gregorio / Banca Promos)
Desogus Law Office (Cagliari)
Introduction Article 2 of the Italian Competition Law no. 287/1990 (ICL), which is equal to Article 101 TFEU, provides that an agreement that restrains competition is void. By its judgment rendered in De Gregorio et al v Banca Promos, the Italian Court of Cassation has considered the reach of (...)

The Danish Competition Authority acquits two companies of illegally coordinating prices in the delivery of workwear (Bjerregaard Sikkerhed / Bacher Logistics)
Bird & Bird (Copenhagen)
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Bird & Bird (Copenhagen)
On the 24th of September 2019, two Danish companies Bjerregaard Sikkerhed A/S and Bacher Logistics A/S were acquitted by the Danish Competition Authority (DCCA) of illegally coordinating prices and other terms. The case stems from an interministerial procurement of five framework agreements (...)

The EU General Court dismisses an appeal against the re-adopted decision in the paper envelope cartel case (Printeos / Commission)
Van Bael & Bellis (Brussels)
On 24 September 2019, the General Court dismissed the appeal lodged by Printeos (previously known as Tompla) against the re-adopted European Commission (“Commission”) decision in the Paper Envelopes cartel case (Case T-466/17, Printeos v. Commission). By way of background, the Commission (...)

The EU General Court reaffirms the Commission’s duty to provide sufficient reasons when explaining fine calculations in cartel cases (HSBC)
Shearman & Sterling (Brussels)
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Shearman & Sterling (London)
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Shearman & Sterling (London)
On 24 September 2019, the EU General Court (GC) handed down its judgment in HSBC v. Commission. Consistent with recent precedent, the GC reaffirmed the European Commission (“Commission”)’s duty to provide sufficient reasons when explaining fine calculations in cartel cases and annulled the fine (...)

The Canadian Supreme Court expands the scope of potential liability in price-fixing class actions (Godfrey)
Davies Ward Phillips & Vineberg (Toronto)
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Davies Ward Phillips & Vineberg (Toronto)
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Davies Ward Phillips & Vineberg (Toronto)
The Supreme Court of Canada has released its long-awaited decision in two companion appeals that have significant implications for class actions alleging conduct that contravenes the criminal provisions found in Part VI of the Competition Act (Act). In its decision in Pioneer Corporation v (...)

The Delhi High Court dismisses a writ petition challenging demand notices issues by the Competition Authority relating to the interest payment of the penalties imposed (United India Insurance)
Shardul Amarchand Mangaldas (New Delhi)
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Shardul Amarchand Mangaldas (New Delhi)
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Shardul Amarchand Mangaldas (New Delhi)
The Delhi High Court dismissed a writ petition filed by United India Insurance Company challenging demand notices issued by the CCI requiring payment of interest on penalties imposed by the CCI which were the subject of a stay order by the Competition Appellate Tribunal (COMPAT) hearing an (...)

The Cypriot Competition Authority terminates its investigation into a services company for allegedly imposing unfair trading terms to its customers and retrospective rental fees for point of sales terminals (JCC)
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Trojan Economics (Nicosia)
Introduction On 10 September 2019 the Cyprus Commission for the Protection of Competition (“CPC”) terminated its ex officio investigation against JCC Payment Systems Ltd (“JCC”), having concluded that there have been no violations of Sections 3(1) and 6(1) of the Protection of Competition Law (Law (...)

The Latvian Competition Authority imposes interim measures suspending concession agreements concluded between a municipality and two waste management companies (Riga Municipality / Getliņi EKO / Tīrīga)
Konkurences padome (Riga)
The Competition Council adopts a decision imposing interim measures regarding waste management in Riga* On September 9th the Competition Council of Latvia (the CC) adopted a decision imposing interim measures on Riga Municipality and the limited liability company owned by it – SIA Getliņi (...)

The Portuguese Competition Authority fines 14 banks for exchange of information (BBVA / BIC / BPI / BCP ...)
Portuguese Competition Authority (Lisbon)
AdC imposes a fine of 225 million euros to 14 banks The Portuguese Competition Authority (Autoridade da Concorrência - AdC) fined 14 banks in the total amount of 225 million euros in connection with the concerted practice of exchanging sensitive commercial data, during a period of more than ten (...)

The French Competition Authority and the Austrian Competition Authority carry out unannounced inspections in the automatic swimming pool cleaning equipment distribution sector
French Competition Authority (Paris)
Dawn raids* The General Rapporteur of the Austrian competition authority and the General Rapporteur of the Autorité de la concurrence indicate that unannounced inspections have been carried out in the automatic swimming pool cleaning equipment distribution sector. Following judicial (...)

The EU Advocate General Bobek publishes his opinion on the concept of restriction of competition by object or by effect (Gazdasági Versenyhivatal / Budapest Bank)
Dentons (Brussels)
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Levi Strauss (Brussels)
AG BOBEK’S OPINION IN BUDAPEST BANK: ON OBJECT VS. EFFECT, FISH AND LILIES* On September 5, 2019, Advocate General Bobek published his opinion in the Budapest Bank case (C-228/18). The opinion provides very clear and practical guidance on the concept of restriction of competition by object – a (...)

The Advocate General Bobek provides an analytical framework to assess the appropriateness of ‘by object’ qualifications while clarifying and consolidating the case-law on the dichotomy between ‘by object’ and ‘by effect’ restrictions (Budapest Bank)
Liège University
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KU Leuven
Comment On 5 September 2019, Advocate General (‘AG’) Bobek delivered his Opinion in the Budapest Bank case following a request for a preliminary ruling from the Hungarian Supreme Court (‘HSC’). AG Bobek advised on several matters such as the existence of an obligation for National Competition (...)

The Canadian Competition Authority issues a call for information from Canada’s business community about conduct in the digital economy that may be harmful to competition Free
Canadian Competition Bureau (Gatineau)
Competition Bureau calls for businesses to report potentially anti-competitive conduct in the digital economy* The Competition Bureau has published a call-out for information from Canada’s business community about conduct in the digital economy that may be harmful to competition. The Bureau is (...)

The Australian Competition Authority publishes its final report on the inquiry into the supply of foreign currency conversion services
Herbert Smith Freehills (Sydney)
On 2 September 2019, the ACCC released the final report of the ACCC’s inquiry into the supply of foreign currency conversion services (FX services) in Australia (the Report). The ACCC concluded that Australian consumers are paying too much for FX services because of confusing, inconsistent (...)

Unilateral Practices

The German Competition Authority and the Federal Network Agency issue their guidelines for the control of abusive practices in the electricity generation and wholesale trade sector
German Competition Authority (Bonn)
Control of abusive practices in electricity generation/wholesale trade: Bundeskartellamt and Bundesnetzagentur publish guidelines* The Bundeskartellamt and the Bundesnetzagentur are today publishing the guidelines for the control of abusive practices in the electricity generation and wholesale (...)

The German Competition Authority and Federal Network Agency publish joint guidelines on the control of abusive practices in the electricity sector
Van Bael & Bellis (Brussels)
On 27 September 2019, the Federal Cartel Office (“FCO”) and the Federal Network Agency (“FNA”) jointly published guidelines for the control of abusive practices in the electricity generation and wholesale sectors, which also address the interpretation of certain aspects of the Regulation on (...)

The Italian Regional Administrative Court of Lazio rejects the appeal against abuse of dominance decision in the markets for the management of copyrights (SIAE)
Bird & Bird (Rome)
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Bird & Bird (Rome)
On 26 September 2019, the Regional Administrative Court of Lazio (“TAR”) rejected the appeal lodged by the Italian Authors’ and Publishers’ Association (the “SIAE”) against the decision of the Italian Competition Authority (the “ICA”) taken on 25 September 2018. In this decision, the Authority had (...)

The Portuguese Competition Authority fines a company for abuse of dominance in the market for secondary reserve services (EDP Produção)
Portuguese Competition Authority (Lisbon)
AdC imposes fine of 48 million euros on EDP Produção for abuse of dominance* The AdC (Autoridade da Concorrência – Portuguese Competition Authority) imposed a fine of 48 million euros on EDP – Gestão da Produção de Energia, S.A., (EDP Produção), for abuse of dominance in the market for secondary reserve (...)

The Danish Competition Appeals Tribunal confirms that a company abuses its dominance by using conditional rebates and exclusivity provisions in the payment card sector (Teller)
Danish Competition and Consumer Authority (Copenhagen)
The Danish Competition Appeals Tribunal confirms that Teller (now Nets) abused its dominant position by using rebates conditional on exclusivity and exclusivity provisions* The Danish Competition Appeals Tribunal (DCAT) confirmed the 18th of September 2019 the ruling by the Danish Competition (...)

The Hungarian Competition Authority imposes a fine on social media influencers for breach of commitments (Alakreform / Avanzo)
Bird & Bird (Budapest)
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Bird & Bird (Budapest)
Fines are on the horizon for social media influencers not aligning their practice as set out by the Hungarian Competition Authority (GVH), as may be deduced from the GVH’s Rubint decision of 16 September 2019. The case roots back to 2016, when the GVH started investigating social media (...)

The US Court of Appeals for the Ninth Circuit reformulates legal doctrines created for physical property to apply to new technology-based torts (HiQ / LinkedIn)
Constantine Cannon (Washington)
THE NINTH CIRCUIT’S DECISION IN HIQ V LINKEDIN: DATA SCRAPING MAY HAVE A FUTURE, BUT FOR HOW LONG?* Do companies that gather public information have an obligation to make that information available en masse to would-be competitors? Do competitors have a right to access those companies’ websites (...)

The Indian Supreme Court flips its jurisprudence on abuse of dominance in a case involving radios taxis alleged of predatory pricing (Uber)
Indian Competition Commission (New Delhi)
On September 3, 2019 The Supreme Court of India vide its judgement in Uber India Systems Pvt. Ltd. (Uber) v. Competition Commission of India (CCI) appears to have flipped the jurisprudence on abuse of dominance under the Indian Competition Act, 2002 (the “Act”) by requiring the assessment of the (...)

The Indian Supreme Court dismisses an appeal against an investigation into allegations of abuse of dominance (Uber)
Jindal Initiative on Research in IP and Competition (Delhi)
SUPREME COURT OF INDIA UPHOLDS INVESTIGATION AGAINST UBER* The Hon’ble Supreme Court of India has dismissed an appeal[Uber India Systems Pvt. Ltd v Competition Commission of India, Civil Appeal No. 641 of 2017] filed by Uber India Systems Pvt. Ltd. (‘Uber’) against an order of the erstwhile (...)

The Indian Supreme Court requests the Competition Authority’s Director General to continue the investigation allegations relating the abuse of dominance in the radio taxis sector (Uber)
Shardul Amarchand Mangaldas (New Delhi)
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Shardul Amarchand Mangaldas (New Delhi)
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Shardul Amarchand Mangaldas (New Delhi)
Deciding on an appeal from the National Company Law Appellate Tribunal (NCLAT), the Supreme Court requested the Director General, CCI (DG) to continue investigating allegations relating to abuse of dominance by Uber in the National Capital Region (NCR). [1] In considering whether the (...)

Mergers

The French Competition Authority clears a merger in the distribution of automotive parts market (TODD group / Alliance Automotive France)
French Competition Authority (Paris)
Distribution of automotive parts* The Autorité de la concurrence clears the acquisition of TODD group by the company Alliance Automotive France On 2 September 2019, the company Alliance Automotive France (hereinafter « AAF ») notified the Autorité de la concurrence of its plan to take over TODD (...)

The Czech Competition Authority clears a merger of three competitors in the retail and online stores with furniture and home accessories (XLCEE / Kika / Lambda)
Bird & Bird (Prague)
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Bird & Bird (Prague)
The Office for the Protection of Competition allows a merger of three competitors – XLCEE-Holding Gmbh and companies Kika Nábytek, s.r.o. (Kika CZ) and Lambda Properties Czechia, s.r.o. (Lambda CZ), provided that structural obligations set out in order to maintain the effective competition are (...)

The French Competition Authority clears a merger, subject to pre-acquisition divestitures in the food and non-food wholesale and semi-wholesale sector (Cayenne supermarket / Super NKT)
French Competition Authority (Paris)
Acquisition of Cayenne supermarket Super NKT* The Autorité de la concurrence cleared the acquisition, subject to conditions, of the company NDIS and its subsidiary NG Kon Tia by SAFO (Huyghues-Despointes Group), which will be conditional on a divestiture prior to the acquisition of the (...)

The Dutch Ministry of Economic Affairs and Climate grants a licence, overruling the Competition Authority’s decision, for overriding public interests including the continuity and affordability of high quality in the postal services sector (PostNL / Sandd)
Bird & Bird (The Hague)
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Bird & Bird (Amsterdam)
In February of this year, PostNL announced its intention to acquire rival operator Sandd. In view of the rapidly declining postal volumes, the two operators consider the combination of their nationwide postal networks necessary to ensure continuity and affordability of postal services. On (...)

The EU Advocate General Tanchev issues his opinion and recommends that the EU Court of Justice partially annul a gun-jumping fine (Marine Harvest)
Dentons (Brussels)
GUN JUMPING: AG TANCHEV TELLS EUROPEAN COURT OF JUSTICE THAT MARINE HARVEST SHOULD RECEIVE ONE FINE, NOT TWO* There has been an important milestone in the search for more legal certainty in gun-jumping cases: On September 26, 2019, Advocate General (AG) Tanchev issued his opinion in the Marine (...)

The Ukrainian Competition Authority issues new guidelines clarifying the notification of joint ventures
Redcliffe Partners (Kyiv)
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Redcliffe Partners (Kyiv)
ANTIMONOPOLY COMMITTEE OF UKRAINE ISSUED NEW GUIDELINES CLARIFYING THE NOTIFICATION OF JOINT VENTURES: ANTIMONOPOLY COMMITTEE OF UKRAIN / UKRAINIAN COMPETITION AUTHORITY / JOINT VENTURES / MINORITY ACQUISITIONS* On 26 September 2019, the Antimonopoly Committee of Ukraine (the ’AMC’) issued new (...)

The German Competition Authority clears a merger in the hospital sector in spite of the high market shares of the clinics (Klinikverbund Kempten-Oberallgäu / Kreiskliniken Unterallgäu)
German Competition Authority (Bonn)
Bundeskartellamt clears hospital merger in the Allgäu region* In the first phase of examination the Bundeskartellamt has cleared the planned merger of the hospital group Klinikverbund Kempten-Oberallgäu gGmbH, Immenstadt, with the district clinics Kreiskliniken Unterallgäu AöR, Mindelheim, (...)

The French Competition Authority clears a merger in the coach transport market (CarPostal France / Keolis)
French Competition Authority (Paris)
Coach transport* The Autorité has given the green light to the acquisition of CarPostal France by Keolis Keolis notified the Autorité de la concurrence of its planned acquisition of CarPostal France. Following an examination of the effects of this transaction on the urban and interurban public (...)

The UK Competition Authority imposes its largest fine for a single breach of an interim enforcement order in a merger (Paypal / iZettle)
Herbert Smith Freehills (London)
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Herbert Smith Freehills (London)
On 24 September 2019 the UK Competition and Markets Authority (CMA) imposed its largest ever fine for a single breach of an interim enforcement order (IEO) on Paypal, in the context of its acquisition of iZettle. IEOs are now routinely imposed in almost all completed mergers investigated by (...)

The UK Competition Authority fines a company for breaching merger control rules in the mobile point-of-sale devices sector (Paypal / iZettle)
Van Bael & Bellis (Brussels)
On 24 September 2019, the UK’s Competition and Markets Authority (“CMA”) fined Paypal £ 250,000 for breaching its freezing order that halted integration of the parties during its review of Paypal’s completed acquisition of the Swedish start-up iZettle. Despite having approved the deal in June 2019, (...)

The UK Competition Authority considers that a merger in the sports fashion market raises competition concerns (JD Sports / Footasylum)
British Competition Authority - CMA (London)
Sports fashion merger raises competition concerns* The CMA has found that JD Sports’ takeover of close competitor Footasylum could be bad for shoppers. The Competition and Markets Authority (CMA) is concerned that the loss of competition brought about by the merger could result in a worse deal (...)

The EU Commission clears a merger subject to remedies in the market for the supply of electricity (E.ON / Innogy)
DG COMP (Brussels)
Mergers: Commission clears E.ON’s acquisition of Innogy, subject to conditions* The European Commission has approved, under the EU Merger Regulation, the acquisition by E.ON of Innogy’s distribution and consumer solutions business as well as certain of its electricity generation assets. The (...)

The Portuguese Competition Authority sends a statement of objection accusing a company of gun-jumping (Capital / SCA / SICAR)
Portuguese Competition Authority (Lisbon)
AdC accuses HCapital, SCA - SICAR of gun-jumping* The AdC (Autoridade da Concorrência – Portuguese Competition Authority) sent a statement of objections to HCapital, SCA – SICAR for acquiring sole control of Solzaima without prior notification of the transaction and, consequently, without (...)

The French Competition Authority opens a public consultation in order to revise its merger guidelines
French Competition Authority (Paris)
The Autorité de la concurrence opens a public consultation in order to revise its merger guidelines* Since autumn 2017, the Autorité has been involved in an important modernisation and simplification of merger control by easing the constraints on companies (see press release dated 25 April (...)

The French Competition Authority publishes a public consultation to gather feedback on its draft revised merger control guidelines
Bird & Bird (Paris)
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Bird & Bird (Paris)
The French Competition Authority (FCA) has recently launched a public consultation to gather feedback on its draft revised merger control guidelines. The new guidelines aim at replacing the current merger control guidelines which were adopted back in 2013. The adoption of these new guidelines - (...)

The Portuguese Competition Authority clears a merger in the hospital market in applying the failing firm defence (HSGL / HPA Group)
Portuguese Competition Authority (Lisbon)
The AdC adopts a clearance decision on the Grupo HPA Saúde / Hospital São Gonçalo de Lagos merger* The AdC (Autoridade da Concorrência – Portuguese Competition Authority) has adopted a clearance decision on the merger concerning the acquisition of sole control of Hospital São Gonçalo de Lagos (...)

The German Competition Authority closes its merger review proceeding after companies had given up their merger plans in the furniture sector (VME / KHG)
German Competition Authority (Bonn)
Bundeskartellamt prevents major purchasing cooperation in the furniture sector* The Bundeskartellamt has discontinued its administrative proceeding on account of the planned merger of the purchasing cooperations VME Union GmbH and KHG GmbH & Co. KG (Krieger/Höffner group) after the (...)

The Belgian Competition Authority clears a merger in the retail sector in stations and airports (International Duty Free / Lagardère Travel Retail)
Belgian Competition Authority (Brussels)
The Belgian Competition Authority approves the acquisition of International Duty Free S.A. by Lagardère Travel Retail S.A.S.* The Investigation and Prosecution Service of the Belgian Competition Authority (BCA) has approved on 12 September 2019 the acquisition of International Duty Free S.A. (...)

The French Competition Authority clears a merger in the markets of cosmetics and perfumes (Colgate Palmolive / Laboratoires Filorga Cosmétiques)
French Competition Authority (Paris)
Cosmetic products* The Autorité de la concurrence clears the acquisition of Laboratoires Filorga Cosmétiques by Colgate Palmolive On 7 August 2019, Colgate-Palmolive notified the Autorité de la concurrence of its plan to take over Laboratoires Filorga Cosmétiques . By a decision issued today, the (...)

The Indian Competition Authority approves an acquisition of shares totaling 25% in an auto solutions company by an auto manufacturing company (TVS Automobile Solutions / Mitsubishi)
Vaish (New Delhi)
CCI approves acquisition of shares of TVS Automobile Solutions Pvt. Ltd by Mitsubishi* By way of order dated 06.09.2019, the Commission has approved the acquisition of shares of TVS Automobile Solutions Pvt. Ltd (“TVS”) by Mitsubishi Corporation (“Mitsubishi”) by way of subscription as well as (...)

The French Competition Authority closes the ex officio proceedings to verify the compliance of remedies concerning a merger in the telecom sector (Altice France / SFR)
French Competition Authority (Paris)
Telecoms* The Autorité closes the ex officio proceedings it had started to ensure compliance with the commitments concerning the sale of Completel’s DSL network made by Altice France when it acquired SFR. The Autorité considers that there is no evidence to characterise Altice France’s actions (...)

The Spanish Competition Authority investigates potential gun jumping in a merger in the fruit and vegetables wholesale sector (Nufri / Idulleida)
Gomez Acebo & Pombo (Brussels)
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Gomez Acebo & Pombo (Brussels)
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Gomez Acebo & Pombo (Brussels)
In September 2019, the CNMC announced that it had opened disciplinary proceedings against NUFRI, Sociedad Agraria de Transformación A.P.A, an entity active in the wholesale of fruits and vegetables. In particular, the CNMC is concerned that NUFRI could have violated the standstill obligation (...)

The Spanish Competition Authority initiates proceedings against an undertaking for having closed an acquisition before gaining merger clearance (Nufri / Idulleida)
Callol, Coca & Asociados (Madrid)
On 6 September 2019, the CNMC has initiated proceedings against NUFRI for having closed the acquisition of Grupo IDULLEIDA before gaining merger clearance. On 11 July 2019, the CNMC cleared in first phase the transaction which had been notified on 21 June 2019. However, the CNMC has initiated (...)

The Dutch Competition Authority prohibits a merger in the postal delivery market (Sandd / PostNL)
Netherlands Authority for Consumers & Markets (The Hague)
ACM does not grant a license for the acquisition of postal operator Sandd by PostNL* Having conducted a thorough investigation, the Netherlands Authority for Consumers and Markets (ACM) has decided not to grant a license for the acquisition of postal operator Sandd by rival operator PostNL. (...)

The US DoJ provides details on the use of arbitration to resolve a challenge to a proposed acquisition in the market of the aluminum sheet (Novelis / Aleris)
Jones Day (Washington DC)
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Jones Day (New York)
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Jones Day (Washington DC)
In Short: The Situation: The United States Department of Justice Antitrust Division ("DOJ") has provided details on the unprecedented use of arbitration to resolve its challenge to the proposed acquisition of Aleris Corporation by Novelis Inc. The Significance: Companies now have greater (...)

The US DoJ agrees to use binding arbitration to resolve merger disputes for a new approach in antitrust enforcements (Novelis / Aleris)
Constantine Cannon (New York)
DOJ AGREEMENT TO USE BINDING ARBITRATION TO RESOLVE MERGER DISPUTE COULD HERALD NEW APPROACH IN ANTITRUST ENFORCEMENT* Federal antitrust enforcers may be increasingly looking to arbitrators—instead of federal courts—to be the arbiters of competition law if a new approach in enforcement takes (...)

The US DoJ agrees to refer the product market definition to binding arbitration (Aleris / Novelis)
Jones Day (Washington DC)
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Jones Day (Washington DC)
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Jones Day (New York)
For the first time in history, DOJ’s Antitrust Division plans to use binding arbitration to resolve an important element of a merger challenge. As part of its lawsuit to block the proposed acquisition of Aleris Corporation by Novelis Inc., the parties and DOJ agreed to resolve the issue of (...)

The US DoJ submits a market definition question to the binding arbitration (Aleris / Novelis)
Constantine Cannon (San Francisco)
MERGERS AND ACQUISITIONS, MARKET DEFINITION, UNITED STATES OF AMERICA, ARBITRATION, ALUMINUM FOR AUTOMOTIVE APPLICATIONS* On September 4, 2019, the United States Department of Justice’s Antitrust Division sued to block Novelis, Inc.’s acquisition of Aleris Corporation, alleged to be a “new and (...)

State Aid

The EU General Court clarifies the burden of proof that has to be met by the Commission to demonstrate the existence of an advantage in the context of tax rulings (Starbucks)
Liège University
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Liège University
On 24 September 2019, the General Court (‘GC’) rendered its first two Judgments assessing under which circumstances EU State aid rules can curtail Member States’ sovereignty to adopt individual tax rulings. In the Starbucks Judgment discussed here, the GC ruled in favour of Starbucks since the (...)

The EU General Court delivers two judgments providing important guidance on the application of the arm’s length principle in the context of State aid investigations concerning tax measures (Fiat / Starbucks)
Van Bael & Bellis (Brussels)
On 24 September 2019, the General Court delivered two judgments in Cases T-755/15, Luxembourg v. Commission and T-759/15, Fiat Chrysler Finance Europe v. Commission, providing important guidance on the application of the arm’s length principle in the context of State aid investigations (...)

The EU General Court orders Luxembourg and Netherlands to recover millions of euros from two companies on the basis of State aid rules (Fiat / Starbucks)
Bird & Bird (Brussels)
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Bird & Bird (Brussels)
On 24 September 2019, the General Court delivered its first two judgements in the series of appeals against European Commission (EC) decisions on tax rulings ordering Member States to recover millions of euros on the basis of state aid rules. In October 2015, the EC ruled that selective tax (...)

The EU General Court delivers two judgments providing guidance on the application of the arm’s length principle in the context of State aid investigations (Fiat / Starbucks)
Skadden, Arps, Slate, Meagher & Flom (Chicago)
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Skadden, Arps, Slate, Meagher & Flom (Washington DC)
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Skadden, Arps, Slate, Meagher & Flom (Brussels)
Introduction On September 24, 2019, the EU General Court (General Court) issued its long-awaited judgments in relation to the appeals brought against two European Commission (EC) decisions of 2015 concluding that tax rulings granted by The Netherlands and Luxembourg conferred illegal state aid (...)

The EU General Court delivers two judgements clarifying how State aid rules apply to national tax rulings and determines whether a transfer pricing ruling in respect of intra-group transactions confers a selective advantage under the EU State aid rules (Fiat / Starbucks)
Baker Botts (Brussels)
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Baker Botts (Brussels)
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Baker Botts (Brussels)
On 24 September 2019, the General Court (the ‘Court’) upheld the European Commission’s (the ‘Commission’) ruling ordering Luxembourg to recover EUR 23.1 million from Fiat Chrysler Finance Europe (‘FFT’) and annulled the Commission’s ruling ordering the Netherlands to recover EUR 25.7 million from (...)

The EU General Court delivers two judgments providing guidance on the application of the arm’s length principle in the context of State aid investigations (Fiat / Starbucks)
Arendt & Medernach (London)
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Arendt & Medernach (Luxembourg)
THE GENERAL COURT’S JUDGEMENT IN FFT: A CRITIQUE* In its judgments on 24 September in the FFT and Starbucks cases, the EU General Court gave its first view on the European Commission’s tax ruling decisions. These decisions were novel and complex in that they sought to assess whether the tax (...)

The EU General Court rules on an appeal against the recovery of an aid from the new owner of an aid recipient in the chemical sector (Fortischem)
College of Europe (Bruges)
* Article published on StateAidHub (click here), republished in e-Competitions with the courtesy of the author(s). 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 General Court provides further guidance with regard to the concept of State aid in the context of fiscal measures favouring port authorities (Port autonome du Centre / Port de Bruxelles / Havenbedrijf Antwerpen)
Van Bael & Bellis (Brussels)
On 20 September 2019, the General Court delivered three judgments (Cases T-673/17, Port autonome du Centre and de l’Ouest and Others v. Commission, T-674/17, Le Port de Bruxelles and Région de Bruxelles-Capitale v. Commission, T-696/17, Havenbedrijf Antwerpen and Maatschappij van de Brugse (...)

The EU General Court upholds the Commission’s assessment that the Czech renewable energy support scheme involved State resources (FVE Holýšov I)
Baker Botts (Brussels)
In a judgment of 20 September 2019, the EU General Court (the “General Court”) upheld a 2016 decision of the European Commission (the “Commission”) finding that a EUR 31 billion Czech support scheme in favour of renewable energy sources (“RES”) should be classified as State aid. The judgment (...)

The EU Commission approves a State aid scheme partly because it didn’t contain aid and partly because it was compatible with the internal market (Primary Residence Protection Scheme)
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 Commission opens in-depth investigations to assess whether “excess profit” tax rulings granted by Belgium to 39 multinational companies are in line with EU State aids rules
DG COMP (Brussels)
State aid: Commission opens in-depth investigations into individual “excess profit” tax rulings granted by Belgium to 39 multinational companies* The European Commission has opened separate in-depth investigations to assess whether “excess profit” tax rulings granted by Belgium to 39 multinational (...)

Procedures

The Mexican Competition Authority releases guidelines that recognise attorney-client privilege in antitrust investigations
Jones Day (Mexico)
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Jones Day (Washington DC)
In Short The Development: Mexico’s antitrust authority, the Comisión Federal de Competencia Económica ("COFECE"), released guidelines that recognize the attorney-client privilege in antitrust investigations. Background: Mexican law requires that lawyers maintain professional secrecy, which (...)

The EU General Court annuls a cartel fine imposed by the Commission due to insufficient motivation (HSBC)
Gomez Acebo & Pombo (Brussels)
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Gomez Acebo & Pombo (Brussels)
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Gomez Acebo & Pombo (Brussels)
The General Court of the EU annuls cartel fine imposed to HSBC by the Commission due to insufficient motivation (Judgment of the General Court of the EU of 24 September 2019 in Case T-105/17 HSBC Holdings plc, HSBC Bank plc, HSBC France v Commission). In December 2016, the Commission adopted a (...)

The EU General Court annuls a decision due to the Commission’s failure to sufficiently explain the methodology relied upon in calculating the fine (HSBC)
Van Bael & Bellis (Brussels)
Euro interest rate derivatives cartel case On 24 September 2019, the General Court issued a judgment on an appeal lodged by HSBC against the European Commission’s (the “Commission”) decision fining HSBC € 33.6 million for its involvement in the Euro Interest Rate Derivatives cartel case (Case (...)

The EU General Court annuls a €33,6 m fine imposed in relation to the Euro Interest Rate Derivatives cartel because of the Commission’s insufficient reasoning on the applied calculation method (HSBC)
Liège University
In yet another bank cartel case, the EU General Court (“GC” or “the Court”) takes a position consistent with its previous case law as regards the right to defence of the parties and annuls the fine imposed on HSBC due to insufficient reasoning. In addition, the GC assesses the conditions for (...)

The Delhi High Court holds that the Director General of the CCI has broad powers of investigation (Grasim / CCI)
Shardul Amarchand Mangaldas (New Delhi)
,
Shardul Amarchand Mangaldas (New Delhi)
,
Shardul Amarchand Mangaldas (New Delhi)
In its Judgment in the Grasim case, a Division Bench of the Delhi High Court held that the DG had broad powers of investigation going beyond the specific subject matter of the CCI’s prima facie order directing an investigation. In June 2011, the CCI had passed an order under Section 26(1), (...)

The Polish Supreme Court confirms a telecommunications company liability for delaying a dawn raid but reduces the fine (T.S.A)
Bird & Bird (Warsaw)
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Bird & Bird (Warsaw)
On 10 September 2019, the Polish Supreme Court issued a landmark judgement in which it clarified the applicable rules during a company inspection by the Polish Competition and Consumer Protection Office (UOKiK). As the UOKiK regularly conducts (unannounced) company inspections (or ’dawn raids’), (...)

Regulatory

The Dutch Competition Authority publishes a sector report on the impact of biosimilars on competition between TNF-alfa inhibitors
Bird & Bird (The Hague)
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Bird & Bird (The Hague)
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Bird & Bird (The Hague)
Dutch competition authority ACM publishes a sector report on the impact of biosimilars on competition between TNF-alfa inhibitors* The Dutch competition authority, ACM, initiated a market study in 2018 into the effect of the introduction of biosimilars on the competition between TNF alfa (...)

The Dutch Competition Authority publishes a report on the market study about the effects on competition of the introduction of biosimilars
Bird & Bird (The Hague)
,
Bird & Bird (Amsterdam)
On 24 September 2019 the Dutch Authority for Consumers and Markets (ACM) published its report on the 2018 initiated market study about the effects the introduction of biosimilars had on competition between TNF alfa inhibitors on the Dutch market. ACM did not establish violations of competition (...)

The German Federal Minister for Economic Affairs and Energy publishes its reports and recommendations concerning a new European competition law framework for the digital economy
Bird & Bird (Dusseldorf)
On 9 September 2019 the expert commission “Competition Law 4.0” presented its report and recommendations concerning a new European competition law framework for the digital economy. The Commission of Experts was appointed by the German Federal Minister for Economic Affairs and Energy, Peter (...)

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