Burden of proof

General antitrust

The Canadian Competition Authority recommends sweeping amendments to core provisions of the Canadian Competition Act
Steve Szentesi Law Corporation (Vancouver)
Canada’s Competition Bureau Recommends Sweeping Amendments to the Competition Act, Including Deceptive Marketing Amendments On February 8, 2022, Canada’s Competition Bureau released a submission entitled Examining the Canadian Competition Act in the Digital Era in response to Senator Howard (...)

The Chinese National People’s Congress seeks comments on its draft amendments to the anti-monopoly law
King & Wood Mallesons (Beijing)
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King & Wood Mallesons (Beijing)
Key Changes and Impacts On October 23, 2021, the Standing Committee of the Chinese National People’s Congress (“NPC”) released the Draft Amendments (’Draft Amendments’) to Anti-Monopoly Law of the People’s Republic of China (“AML”) for public comments [1]. This is the second draft of amendments (...)

The UK Government publishes consultations on far-reaching reforms to competition and consumer laws which would substantially expand the powers of the Competition Authority and reduce procedural protections
Skadden, Arps, Slate, Meagher & Flom (Brussels)
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Skadden, Arps, Slate, Meagher & Flom (Brussels)
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Skadden, Arps, Slate, Meagher & Flom (Brussels)
The U.K. government is consulting on far-reaching reforms to U.K. competition and consumer laws, which would substantially expand the powers of the Competition and Markets Authority (CMA) and reduce procedural protections. Key proposals include: Merger control jurisdiction enlarged: The CMA (...)

The US Senate introduces Senator Hawley’s proposal for an important antitrust reform aimed at Big Tech, Big Banks, Big Telecoms, and Big Pharma
White & Case (New York)
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White & Case (Washington)
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Meta (Washington DC)
Sen. Hawley’s "Trust-Busting for the Twenty-First Century Act," introduced on April 12, 2021, takes aim at "Big Tech, Big Banks, Big Telecom, and Big Pharma" by proposing to curb mergers and acquisitions by large corporations and ease the way for prosecutors and private plaintiffs to prevail in (...)

The Russian Supreme Court adopts a decree providing clarifications on antitrust matters that arise in court proceedings
Herbert Smith Freehills (Moscow)
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Herbert Smith Freehills (Moscow)
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Herbert Smith Freehills (Brussels)
In March, the Russian Supreme Court adopted a Decree providing clarifications on antitrust matters (the "Plenum Decree") . The Plenum Decree replaced most of the previous antitrust clarifications issued by the Supreme Commercial Court back in 2008. The new measure is comprehensive and covers a (...)

The German Parliament announces the publication of the Act against restraints of competition containing several significant adjustments of the draft that was initially put to vote
White & Case (Dusseldorf)
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White & Case (Dusseldorf)
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White & Case (Hamburg)
Yesterday, the 10th amendment to the German Act against Restraints of Competition (Gesetz gegen Wettbewerbsbeschränkungen – "GWB") entered into force, and with it the most substantial overhaul of German competition law in a long time. The new law contains a number of significant adjustments of (...)

The German Federal Ministry for Economic Affairs and Energy issues an update on the reform of national competition law
Court of First Instance of Namur (Namur)
On 24 January 2020, the German Federal Ministry for Economic Affairs and Energy published an update of its draft 10th amendment to the Act against Restraints of Competition (the “ARC”), officially called the “ARC Digitization Act”. Compared to the initial draft (see VBB on Competition Law, Volume (...)

The OECD holds a roundtable on hub-and-spoke arrangements in competition
OECD - Competition Division (Paris)
Hub-and-spoke arrangements are horizontal restrictions on the supplier or retailer level (the “spokes”), which are implemented through vertically related players that serve as a common “hub” (e.g., a common manufacturer, retailer or service provider). The “hub” facilitates the co-ordination of (...)

The US State of California becomes the first State to enact legislation rendering certain pharmaceutical patent litigation settlement agreements presumptively anticompetitive
White & Case (Washington)
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Allen & Overy (Palo Alto)
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White & Case (New York)
This article has been nominated for the 2020 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. On October 7, 2019, California became the first state to enact legislation— Assembly Bill 824 (“AB 824”)—rendering certain pharmaceutical patent litigation (...)

The Chinese State Administration for Market Regulation issues three new sets of rules and regulations relating to monopoly agreements, abuse of dominant market positions and abuse of administrative power
Orrick, Herrington & Sutcliffe (Beijing)
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Noerr (Dusseldorf)
This article has been nominated for the 2020 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. September 1, 2019 may be seen as a new starting point for the enforcement of China’s antitrust and competition laws. On this date, three new sets of rules and (...)

The Belgian Parliament implements a directive on rules governing actions for compensation of damages arising out of anti-competitive practices
Freshfields Bruckhaus Deringer (Brussels)
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Freshfields Bruckhaus Deringer (Brussels)
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Freshfields Bruckhaus Deringer (Brussels)
Today marks the entry into force of the law which implements Directive No. 2014/104/EU of the European Parliament and Council of 26 November 2014 on certain rules governing actions for compensation of damages arising out of anti-competitive practices (the Damages Directive) into the Belgian (...)

The EU Commission introduces a new tool to encourage individuals to disclose anticompetitive conduct on an anonymous basis
Jones Day (Brussels)
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DLA Piper (London)
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Jones Day (Brussels)
In Short The Situation: The European Commission has launched a new tool that will allow individuals to anonymously report anticompetitive conduct for the first time. The Impact: The Commission’s new access to anonymous inside information could increase the risk of exposure for companies (...)

The UK Government announces plans to introduce an opt-out class action regime in its consultation paper on options for reforming the private enforcement system
Blackstone Chambers (London)
Collective Actions: loss in complex cases* The big news from last week’s UK announcement on reforming private competition enforcement is that the government plans to introduce opt-out class actions for competition claims. The proposals incorporate various “safeguards” designed to ensure that the (...)

The Portuguese Parliament adopts a new Competition Act
Vieira de Almeida (Lisbon)
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DLA Piper (Lisbon)
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Vieira de Almeida (Lisbon)
1. Main goals of the New Competition Law Law No 19/2012 (“New Competition Law”), published in the Official Gazette of 8 May, approves the new legal framework for competition, repealing Law No. 18/2003 of 11 June. The new law increases the competition policy’s transparency and significantly (...)

The French Competition Authority issues an opinion on class actions in the field of competition
Autorité de la concurrence (Paris)
Press Release published on the official website of the French Competition Authority. The Conseil de la concurrence in favour of class action, under certain conditions, for consumers victim of anticompetitive practices.* Following the publication in December 2005 of the report relative to (...)

The EU Court of Justice states that the Commission can require all necessary information including documents from a party involved in the proceeding without undermining the rights of defence (Orkem)
European Court of Justice (Luxembourg)
Case 374/87 Orkem v Commission of the European Communities* 1. A decision is properly notified if it reaches the addressee and the latter is in a position to take cognizance of it. Accordingly, a company notified of a decision requiring information to be provided pursuant to Article 11 (5) (...)

The Luxembourg Competition Council imposes its first fines for cartel practices and clarifies its fining and leniency policy (“Cité judiciaire”)
NautaDutilh (Luxembourg)
1. On 5 March 2010, the Luxembourg Competition Council (“Conseil de la concurrence”) has imposed fines on 7 flooring undertakings for bid rigging practices during a public procurement procedure for flooring works in the new court buildings in Luxembourg-City. The procedure began with a complaint (...)

Anticompetitive practices

The UK Competition Appeal Tribunal overturns the Competition Authority’s wide "Most Favoured Nation" decision (ComparetheMarket)
Clifford Chance (London)
Background In November 2020, the CMA issued a Decision against CTM and imposed a c. £18m penalty. The Decision took issue with contractual obligations known as wide most favoured nation clauses (wide MFNs), which were imposed by CTM in its agreements with certain home insurers. These clauses (...)

The US Court of Appeal for the seventh circuit rejects "Patent Thicket" allegation against a pharmaceutical company, on the claim of prevention of market entry (AbbVie)
Constantine Cannon (New York)
Seventh Circuit’s Rejection of Insurers’ Monopolization Case is Not the Final Word on “Patent Thicket” Litigation* The theory that patent holders can be held liable under the antitrust laws for blocking competition with a thicket of patents may be down—but it is not out. Although the “patent (...)

The EU Court of Justice rules on the temporal applicability of EU law on limitation periods and burden of proof in actions seeking antitrust damages (Volvo / DAF Trucks)
Portolano Cavallo (Milan)
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Portolano Cavallo (Milan)
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Portolano Cavallo (Rome)
On June 22, 2022, the European Court of Justice (hereinafter, the “ECJ”) issued a judgement in Case C-267/20 clarifying the temporal application of certain provisions of Directive 2014/104/EU (the “Directive”), namely Article 10 on limitation periods to claim damages and Article 17 on presumption (...)

The Ankara 9th Administrative Court annuls the Turkish Competition Authority’s decision to impose an administrative monetary fine on a chemical supplier stating that the standard of proof has not been met (Hicri Ercili)
ELIG Gürkaynak Attorneys-at-Law (Istanbul)
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ELIG Gürkaynak Attorneys-at-Law (Istanbul)
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ELIG Gürkaynak Attorneys-at-Law (Istanbul)
The Ankara 9 th Administrative Court (“Administrative Court”) annulled the decision of the Turkish Competition Board (“Board”) where an administrative fine of TL 11,214,051.26 was imposed on Hicri Ercili Deniz Nakliyat Kimyevi Maddeler San. ve Tic. Ltd. Şti.) (“Hicri Ercili”), a supplier of the (...)

The EU Court of Justice sets out the criteria for defining a dominant position in connection with exclusionary practices on the basis of anticompetitive effects of the conduct of an incumbent operator in the context of the liberalisation of the electricity market (Servizio Elettrico Nazionale)
European Court of Justice (Luxembourg)
The Court of Justice sets out the criteria for defining a dominant position in connection with exclusionary practices on the basis of anticompetitive effects of the conduct of an incumbent operator in the context of the liberalisation of the electricity market* This case has arisen in the (...)

The Ankara Regional Administrative Court 8th Administrative Chamber rules for the stay of execution of the Turkish Competition Authority’s cartel decision on account of failure of standard of proof (AKKIM)
ACTECON (Istanbul)
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ACTECON (Istanbul)
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ACTECON (Istanbul)
A Critical Approach to Standard of Proof Adopted by the TCA* The Ankara Regional Administrative Court 8th Administrative Chamber (“Regional Court“) recently ruled for the stay of execution of the Turkish Competition Authority’s (“TCA“) cartel decision which has imposed on two undertakings active in (...)

The Hong Kong Competition Tribunal delivers its first judgment in a private enforcement action, rejecting claims of an alleged cartel in the supply of diesel (Shell Hong Kong / Meyer Aluminium)
Linklaters (Hong Kong)
This article has been nominated for the 2022 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. The Competition Tribunal has delivered its judgment in the first private competition action in Hong Kong SAR. By rejecting the claims of an alleged cartel in the (...)

The Indian Competition Authority dismisses allegations of bid rigging in the market for stevedoring contractors in Paradip Port (Steel Authority of India / Paradip Port / Mahimanand Mishra)
Shardul Amarchand Mangaldas (New Delhi)
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Shardul Amarchand Mangaldas (New Delhi)
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Shardul Amarchand Mangaldas (New Delhi)
The Competition Commission of India (CCI) dismissed allegations by the Steel Authority of India Limited (SAIL) and Paradip Port Trust (PPT) that some stevedoring contractors in Paradip Port had engaged in cartelisation in bidding for stevedoring contracts. According to the CCI, the first (...)

The Turkish Supreme Court annuls the Competition Authority’s decision to impose a fine on a manufacturer of personal and home care products for resale price maintenance and clarifies that RPM cases require an element of "coercion" or "incentive" (Henkel)
ELIG Gürkaynak Attorneys-at-Law (Istanbul)
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ELIG Gürkaynak Attorneys-at-Law (Istanbul)
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ELIG Gürkaynak Attorneys-at-Law (Istanbul)
This case summary includes an analysis of the 13th Chamber of the Council of State’s reversal (E. 2021/969, K. 2021/2654, 06.07.2021) of Ankara Regional Administrative Court’s judgment (E. 2020/394, K. 2020/2451, 23.12.2020). Ankara Regional Administrative Court upheld the Turkish Competition (...)

The Indian Competition Authority rejects allegations that several domestic airlines had colluded to raise prices (Shikha Roy / Jet Airways)
Shardul Amarchand Mangaldas (New Delhi)
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Shardul Amarchand Mangaldas (New Delhi)
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Shardul Amarchand Mangaldas (New Delhi)
The Competition Commission of India (CCI) rejected allegations that a number of domestic airlines had colluded to raise prices during the period of Jat agitation in February 2016. Following the conclusions of the investigating Director General (DG), the CCI found there was no evidence of a (...)

The Belgian Competition Authority considers that the commitments offered by two food retailers under the purchase alliance probe were proportionate and suitable to address potential restrictions of competition (Carrefour / Provera)
Ashurst (Brussels)
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Ashurst (Brussels)
In its decision of 28 April 2021, the Belgian Competition Authority ("BCA") considered that the commitments offered by Carrefour and Provera under the purchase alliance probe were proportionate and suitable to address potential restrictions of competition. Following Carrefour’s divestment offer, (...)

The US Court of Appeals for the Fifth Circuit upholds the FTC’s decision in the first fully litigated reverse payment decision against generic pharmaceutical companies (Endo / Impax)
Cleary Gottlieb Steen & Hamilton (Washington)
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Cleary Gottlieb Steen & Hamilton (Washington)
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Cleary Gottlieb Steen & Hamilton (Washington)
On April 13, the U.S. Court of Appeals for the Fifth Circuit affirmed the Federal Trade Commission’s decision that Impax Laboratories entered an anticompetitive “reverse payment” settlement with Endo Pharmaceuticals. This case was the FTC’s first fully litigated reverse payment case since the (...)

The US Court of Appeals for the Fifth Circuit rules that showing the reverse payment settlement eliminated the possibility of an earlier generic entry is enough to infer anticompetitive effect (Endo / Impax)
Jones Day (New York)
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Jones Day (Washington)
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Jones Day (Washington)
In Short The Background: In the Supreme Court’s landmark 2013 decision in FTC v. Actavis, the Court determined that large payments by branded drugmakers to potential generic entrants to settle patent disputes could be anticompetitive. It instructed district courts to apply the "rule of reason" (...)

The US Court of Appeals for the Fifth Circuit upholds the FTC’s ruling finding liability against a generic drug maker for anticompetitive infringements through “reverse payment” settlement with a brand manufacturer (Endo / Impax)
Hausfeld (Philadelphia)
On April 13, 2021, the U.S. Court of Appeals for the Fifth Circuit upheld the Federal Trade Commission’s ruling that generic drug maker Impact Laboratories, LLC (now owned by Amneal Pharmaceuticals) engaged in an anticompetitive “reverse payment” settlement with brand manufacturer Endo (...)

The US Court of Appeals for the Fifth Circuit upholds the FTC’s ruling regarding an unlawful pay-for-delay agreement in the pharmaceutical sector (Endo / Impax)
Baker Botts (Washington)
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Baker Botts (Washington)
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Baker Botts (Washington)
On April 13, 2021, the U.S. Court of Appeals for the Fifth Circuit upheld the Federal Trade Commission’s (“FTC” or “Commission”) ruling that the “reverse-payment” settlement agreement between Endo Pharmaceuticals Inc. (“Endo”) and Impax Laboratories LLC (“Impax”) violated federal antitrust laws. The (...)

The UK Court of Appeal confirms the High Court’s decision taking into account the claimant’s insolvency in considering whether it could have discovered the facts of the cartel to enable it to plead a viable claim (Granville / Infineon)
Hausfeld (London)
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Hausfeld (London)
The Court of Appeal (CoA) judgment in Granville v Infineon concerns the scope of the claimant’s duty of reasonable diligence in circumstances where facts of the harmful conduct were concealed from the claimant. The CoA dismissed the defendants’ appeal and confirmed that the High Court was correct (...)

The Mexican Competition Authority notifies economic agents of a statement of probable responsibility for possible collusion in the market of land passenger transportation
Mexican Competition Authority (Mexico City)
COFECE notifies economic agents of a statement of probable responsibility for a possible collusion in the market for land passenger transportation* With this notification of a statement of probable responsibility, the trial-like procedure initiates, in which the economic agents can present (...)

The Indian Competition Authority dismisses allegations of cartelization within a professional association in the corrugated box manufacturing industry (Gujarat Paper Mills Association / Indian Corrugated Case Manufacturers’ Association)
Lakshmikumaran & Sridharan (New Delhi)
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Lakshmikumaran & Sridharan (New Delhi)
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Lakshmikumaran & Sridharan (New Delhi)
KEY POINTS A no presumption of appreciable adverse effect on competition (“AAEC”) cannot arise without first establishing the existence of an agreement in terms of the provisions Act. BRIEF FACTS An information was filed before CCI by the Gujarat Paper Mills Associations (“GPMA / Informant”), (...)

The Finnish Market Court finds that three manufacturers of expanded polystyrene engaged in a single and continuous national price-fixing cartel (Jackon Finland / UK-Muovi / Styroplast)
Hannes Snellman (Helsinki)
On 3 March 2021, the Market Court agreed with the submission of the Finnish Competition and Consumer Authority ("FCCA"), that three manufacturers of expanded polystyrene (“EPS”), a building insulation material, had engaged in a national price fixing cartel lasting one and a half years. One of (...)

The Indian Competition Authority orders closure of an investigation into the alleged cartelization in the airlines industry because the observed price parallelism was not proven to have occurred through cartelization (Jet Airways / Indigo / Spice Jet / Go Air / Air India)
Lakshmikumaran & Sridharan (New Delhi)
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Lakshmikumaran & Sridharan (New Delhi)
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Lakshmikumaran & Sridharan (New Delhi)
KEY POINTS Mere price parallelism does not amount to cartelization, if: (i) the market prices have fluctuated, at times with significant margins, (ii) new players are easily able to establish themselves; (iii) all players offer more or less similar kinds of services, and (iv) the prices depend (...)

The Indian Competition Authority finds no proof of a cartel to fix ticket prices among five airline companies (Jet Airways / Indigo / Spice Jet / Go Air / Air India)
SpiceJet (Gurgaon)
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University of Leiden - Europa Institute (Leiden)
I. Introduction The Aviation sector has faced an unprecedented crisis situation due to the havoc wrecked by the COVID-19. In 2020, ICAO estimated an “overall reduction of 2,699 million passengers and approx. USD 371 billion loss of gross passenger operating revenues” in comparison to the level (...)

The Indian Competition Authority finds upon further investigation no evidence of bid-rigging in tenders submitted to the Government Department of Printing for the services of printing, packing and dispatch of confidential documents (Chandraprabhu / Saraswati Offset Printers / United India Tradex)
Lakshmikumaran & Sridharan (New Delhi)
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Lakshmikumaran & Sridharan (New Delhi)
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Lakshmikumaran & Sridharan (New Delhi)
KEY POINTS (i) The mere fact that participants to a tender have common directors/shareholders is not sufficient evidence to return a finding that the parties are engaging in bid-rigging. (ii) Commercial transactions between related parties, such as sale/purchase of goods and loan exchanges, (...)

The French Competition Authority accepts a building games company’s commitments to correct price discrimination against online retailers (Lego)
University Paris Saclay
While the rules on price discrimination lack clarity, the French competition Authority has missed the opportunity to do its part. In order to compensate for the price increase of its products, the Lego France company created a discount scheme for the benefit of its resellers. The discount (...)

The Canadian Competition Authority closes its investigation into an alleged conspiracy by large media companies (Postmedia / Torstar)
Conway Baxter Wilson (Ottawa)
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Journal of Parliamentary and Political Law (Ottawa)
Introduction Canada’s Competition Bureau (‘the Bureau’), which assists the Commissioner of Competition (‘the Commissioner’) in the administration and enforcement of the Competition Act (‘the Act’), announced on 7 January 2021 that the Commissioner closed the investigation into Postmedia Network (...)

The Paris Court of Appeal finds a significant imbalance in the long-term contractual relationship of the French incumbent parcel delivery operator and one of its clients (La Poste / Central Optics)
University Paris Saclay
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University Paris Saclay
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University Paris Saclay
Introduction In its ruling of the 7th January 2021, the Paris Court of Appeal applied the concept of "significant imbalance" in its anterior version now contained in Article L442-1 of the french commercial code. The notion of significant imbalance originates in consumer law and was extended to (...)

The Italian Supreme Administrative Court upholds the lower court’s annulment of the Competition Authority’s decision to fine broadcasters for an alleged anti-competitive agreement in the pay-TV service sector (League / Infront / Sky / Mediaset)
Ashurst (Brussels)
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Ashurst (Milan)
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Ashurst (Brussels)
On 12 December 2020, Italy’s highest administrative court, the Council of State, upheld the annulment of the Italian Competition Authority’s ("ICA") decision to fine broadcasters Mediaset and Sky Italia, the Italian Football League, and marketing agency Infront a total of €66m for an alleged (...)

The Indian Competition Authority closes investigation against an alleged phenol importers cartel after not finding evidence with 12 out of 19 parties which account for 95% of the market (Deepak Phenolics / Chemtrade Overseas / Shubham Chemicals & Solvents)
Lakshmikumaran & Sridharan (New Delhi)
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Lakshmikumaran & Sridharan (New Delhi)
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Lakshmikumaran & Sridharan (New Delhi)
Key points To conduct an investigation in a time bound manner, out of the 19 phenol importers, the DG investigated 12 that accounted for 95% of the total sales volume of phenol. In the absence of any evidence indicating an agreement or meeting of minds amongst the phenol importers, a mere (...)

The Indian Competition Authority dismisses allegations of bid rigging against an aluminium and copper manufacturer (Hindalco / Vedanta)
Lakshmikumaran & Sridharan (New Delhi)
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Lakshmikumaran & Sridharan (New Delhi)
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Lakshmikumaran & Sridharan (New Delhi)
Key points While the standard of evidence required to be provided by an informant is not very high, however, the CCI’s resources cannot be used to further open-ended bald allegations in an omnibus manner which do not further the public cause. In the absence of any material showing even prima (...)

The Indian Competition Authority dismisses cartel allegations against 19 importers of phenol on account of absent conclusive evidence to establish collusion (Sachin Chemicals / Deepak Phenolics / Chokshi Chem / Chemtrade Overseas / Yug...)
Trilegal (Mumbai)
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Trilegal (Mumbai)
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Trilegal (Mumbai)
The Competition Commission of India (CCI) dismissed allegations of cartelization against 19 importers of phenol, on account of absence of conclusive evidence to establish collusion. The CCI held that mere price parallelism does not amount to cartelisation and closed the case. Significantly, the (...)

The EU General Court annuls in part the Commission’s inspection decisions following suspicions of anticompetitive practices by several French undertakings in the distribution sector (Casino, Guichard-Perrachon / Achats Marchandises Casino) (Intermarché Casino Achats) (Les Mousquetaires / ITM Entreprises)
General Court of the European Union (Luxembourg)
The General Court annuls in part the Commission’s inspection decisions following suspicions of anticompetitive practices by a number of French undertakings in the distribution sector* The Commission has failed to show that it had sufficiently strong evidence to suspect exchanges of information (...)

The EU General Court partially annuls decisions ordering dawn raids at the headquarters of two French food retail chains (Casino, Guichard-Perrachon / Achats Marchandises Casino) (Intermarché Casino Achats) (Les Mousquetaires / ITM Entreprises)
Covington & Burling (Brussels)
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Gide Loyrette Nouel (Paris)
In three related judgments of October 5, 2020 (T-249/17, T-254/17 and T-255/17) the General Court (the “GC”) partially annulled European Commission inspection decisions which were the basis for dawn raids on several French retailers. The judgments further develop the position adopted in Czech (...)

The EU General Court partially annuls the decisions of the Commission to order dawn raids on a number of French retailers (Casino, Guichard-Perrachon / Achats Marchandises Casino) (Intermarché Casino Achats) (Les Mousquetaires / ITM Entreprises)
White & Case (Brussels)
Partial annulment of European Commission decisions to order dawn raid inspections* On 5 October 2020, the General Court of the European Union (GC) partially annulled decisions of the European Commission (EC) to order on-the-spot inspections (dawn raids) of a number of French retailers.. The (...)

The EU General Court partially annuls the Commission’s decision ordering inspections at French food retail chains headquarters (Casino, Guichard-Perrachon / Achats Marchandises Casino) (Intermarché Casino Achats) (Les Mousquetaires / ITM Entreprises)
Addleshaw Goddard (Paris)
On 5 October 2020, the EU General Court ("GC") partially annulled European Commission ("Commission") decisions ordering inspections at ITM and Casino’s premises in 2017 following suspicions of illegal anticompetitive exchanges of competitively sensitive information. WHAT YOU NEED TO KNOW - KEY (...)

The EU General Court partially annuls the Commission’s decision authorizing unannounced dawn raids to be carried out at the headquarters of two French food retail chains (Casino, Guichard-Perrachon / Achats Marchandises Casino) (Intermarché Casino Achats) (Les Mousquetaires / ITM Entreprises)
Dechert (Paris)
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Magenta (Paris)
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Dechert (Paris)
In three recent judgments issued on 5 October 2020, the General Court of the European Union ("GCEU") partially annulled the European Commission’s ("Commission") decisions of February 2017 which had authorized onsite unannounced inspections ("dawn raid”) to be carried out at the headquarters of (...)

The EU General Court partially annuls the Commission’s inspection decisions ordering several French undertakings active in the distribution sector to submit to dawn-raid inspections (Casino, Guichard-Perrachon / Achats Marchandises Casino) (Intermarché Casino Achats) (Les Mousquetaires / ITM Entreprises)
Bird & Bird (Rome)
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Luiss Guido Carli University (Rome)
In October 2020, the General Court of the European Union (GC) issued an important decision in the joined Casino cases which promises to ensure that competition investigations will be more robust and afford greater protection to companies‘ rights. Both the European Commission (EC) and companies (...)

The German District Court of Dortmund implements the Kühnen approach to private enforcement in practice and estimates the cartel overcharge to be at least 15% for a rail sector cartel (Rail Cartel)
Spieker & Jaeger (Dortmund)
The esteemed (former) chief judge of the First Senate of the Düsseldorf Higher Regional Court (‘Oberlandesgericht’), Jürgen Kühnen, in 2019 provided ample arguments for an estimation of damages in Private Law. The District Court (‘Landgericht’) of Dortmund implemented Kühnen’s approach in practice. (...)

The German Federal Court of Justice rules on a damages claim following a Commission decision sanctioning a cartel of truck manufacturers (Trucks cartel)
Ashurst (Munich)
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Ashurst (Frankfurt)
In a decision of 23 September 2020, published early January 2021, the German Federal Court of Justice ("BGH") rejected a follow-on damages claim filed against Daimler in relation to the European Commission’s ("Commission") Trucks decision. This is the first time that the highest German civil (...)

The Indian Competition Authority dismisses allegations of anticompetitive conduct and abuse of dominance against an information technology company in public procurement by the Ministry of Railways due to lack of evidence (Sowil / Hexagon Geosystems India)
Lakshmikumaran & Sridharan (New Delhi)
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Lakshmikumaran & Sridharan (New Delhi)
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Lakshmikumaran & Sridharan (New Delhi)
KEY POINTS In the absence of any material on record which can suggest collusion, no case of anti-competitive agreement can be made out. In addition, for a case of abuse of dominance, one must take into consideration the market structure and the number of major players including, global players (...)

The Indian Competition Authority reaffirms that prescribing eligibility criteria in tenders is not anticompetitive (Sandeep Mishra / National Highways Authority of India)
Shardul Amarchand Mangaldas (New Delhi)
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Shardul Amarchand Mangaldas (New Delhi)
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Shardul Amarchand Mangaldas (New Delhi)
In dismissing a complaint at prima facie stage against the National Highways Authority of India (NHAI), [1] the CCI reaffirmed that the prescription of eligibility criteria by a procurer/buyer of a product or service will not, unless demonstrably unfair or discriminatory, be regarded as (...)

The UK Supreme Court finds a competition law infringement caused by payment card schemes used in supermarkets (Sainsbury’s / Visa & MasterCard)
Hausfeld (London)
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Hausfeld (London)
The UK Supreme Court recently handed down its eagerly anticipated Judgment in respect of unlawful interchange fee claims against MasterCard and VISA, following almost a decade of litigation. The Judgment provides welcome clarity to merchant retailers as to the unlawfulness of MasterCard’s and (...)

The UK Supreme Court dismisses an appeal concerning the two largest payment processing networks on the basis that their multilateral interchange fees restricted competition (Sainsbury’s / Visa / MasterCard)
Van Bael & Bellis (Brussels)
On 17 June 2020, the UK Supreme Court dismissed Mastercard and Visa’s appeal against a 2018 ruling by the Court of Appeal of England and Wales and ruled that their multilateral interchange fees (“MIFs”) unlawfully restricted competition. The Supreme Court’s ruling potentially exposes Mastercard and (...)

The UK Supreme Court dismisses the two largest payment processing networks’ arguments on the basis that their multilateral interchange fees restricted competition but upholds grounds of appeal concerning the application of the “passing on” defense (Sainsbury’s / Visa / MasterCard)
Cleary Gottlieb Steen & Hamilton (London)
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Cleary Gottlieb Steen & Hamilton (London)
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Cleary Gottlieb Steen & Hamilton
On 17 June 2020, the Supreme Court handed down a much anticipated judgment concerning the default multilateral interchange fees (MIFs) set by Mastercard and Visa (together, the Appellants). The case considered appeals relating to three separate damages actions brought by retailers against the (...)

The UK Supreme Court hands down its judgment on appeal relating to competition damage claims brought by retailers against two payment platform providers (Sainsbury’s / Visa / Mastercard)
Frontier Economics (London)
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Frontier Economics (London)
This article has been nominated for the 2021 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. The UK Supreme Court recently handed down its judgment on appeals relating to competition damages claims brought by Sainsbury’s and other retailers against (...)

The UK Supreme Court confirms that two payment platform providers’ fees restricted competition (Visa / MasterCard)
Slaughter and May (London)
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Slaughter and May (Brussels)
This article has been nominated for the 2021 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. On 17 June 2020, the Supreme Court unanimously upheld an earlier Court of Appeal ruling that Mastercard and Visa’s multilateral interchange fees (MIFs) restricted (...)

The UK Supreme Court gives an important judgment in the litigation regarding two payment platform providers’ interchange fees (Sainsburys / Visa / Mastercard)
Shearman & Sterling (London)
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Shearman & Sterling (London)
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Shearman & Sterling (Brussels)
Introduction The U.K. Supreme Court has handed victory to a group of British retailers (the “respondents”) in a long-running dispute with Mastercard and Visa Europe (the “appellants”) finding that the default “multilateral interchange fees” (MIFs) set by Mastercard and Visa and charged by (...)

The UK Supreme Court finds that payment card schemes used in supermarkets infringe competition law (Sainsbury’s / Visa / MasterCard)
Morgan Lewis (London)
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Morgan Lewis (London)
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Morgan Lewis (London)
On June 17, 2020, the UK Supreme Court handed down its judgment in the appeals on the lawfulness of multilateral interchange fees, or swipe fees, (MIFs) in Sainsbury’s Supermarkets Ltd (Respondent) v. Visa Europe Services LLC and Others (Appellants) and Sainsbury’s Supermarkets Ltd and Others (...)

The Irish Competition Authority concludes examination of beef industry complaints without going into full investigation due to lack of evidence to prove complainants’ claims
Irish Competition Authority (Dublin)
CCPC Concludes Examination of Beef Industry Complaints* The Competition and Consumer Protection Commission (CCPC) has today written to over 200 individuals, including the Independent Farmers of Ireland, the Beef Plan Movement, and the Irish Farmers Association, regarding the outcome of an (...)

The EU Court of Justice partially quashes the General Court’s decision and reduces the fines on eleven producers of high voltage power cables for their participation in a global market-sharing cartel (NKT)
Ashurst (Brussels)
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Ashurst (Brussels)
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Ashurst (Brussels)
On 14 May 2020, the European Court of Justice (the "ECJ") partially quashed the General Court’s (the "GC") judgment upholding the European Commission’s ("Commission") power cables cartel decision with respect to NKT and its wholly owned subsidiary NKT Verwaltungs (together "NKT" or the (...)

The EU Court of Justice partially annuls the General Court power cables cartel decision and reduces the fine imposed by €200,000 (NKT)
Van Bael & Bellis (Brussels)
On 14 May 2020, the Court of Justice of the European Union (the “Court of Justice”) partly set aside a judgment of the General Court dismissing the action brought by NKT Verwaltungs GmbH (formerly nkt cables GmbH) and NKT A/S (formerly NKT Holding A/S) (together, “NKT”) in the Power Cables cartel (...)

The French Competition Authority dismisses TV distribution platform’s allegations of collusion between 2 TV channel owners due to lack of evidence (Molotov / TF1 / M6) Free
French Competition Authority (Paris)
The Autorité de la concurrence dismisses Molotov’s complaint concerning the practices of TF1 and M6 for lack of evidence* Molotov is a television channel distribution platform which aggregates and streams French audiovisual programmes over the top (OTT), i.e. via the Internet. The application (...)

The US Court of Appeals for the Third Circuit overturns a district court decision certifying a class of direct purchaser plaintiffs without undertaking a rigorous analysis to resolve factual disputes, assess competing evidence, or weigh conflicting expert testimony (Lamictal)
McDermott Will & Emery (New York)
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Crowell & Moring (Washington)
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McDermott Will & Emery (Chicago)
The US Court of Appeals for the Third Circuit recently concluded in In re Lamictal Direct Purchaser Antitrust Litigation that a district court’s reliance on average prices to determine class-wide impact was insufficient. Instead, courts must conduct a rigorous analysis of the facts, evidence and (...)

The EU Court of Justice emphasizes the need for a case and context-specific evaluation of ’by object’ restrictions and provides guidance on what sort of evidence is relevant, in a multilateral interchange fee credit card transaction (Budapest Bank)
Hogan Lovells (Munich)
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Hogan Lovells (Munich)
I. Introduction On 2 April 2020, the Court of Justice of the European Union ("CJEU") delivered its judgment in Budapest Bank, another key ruling on the assessment of 'by object' restrictions of competition within the meaning of Article 101(1) TFEU. With this judgment, the (...)

The German Federal Court of Justice provides guidance on the requirements for establishing liability and the assessment of evidence in cartel damages cases (Schienenkartell II)
Freshfields Bruckhaus Deringer (Berlin)
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European Court of Justice (Luxembourg)
In its judgment of 28 January 2020, the Cartel Senate of the German Federal Court of Justice provided new guidance on the requirements for establishing liability and the assessment of evidence in cartel damages cases. In the initial proceedings, the plaintiff, a local transport company, sought (...)

The Paris Court of Appeal confirms the French Competition’s Authority decision to fine several producers and wholesalers active in the sale of liquid fertilizers for domestic cultivation for imposing vertical restraints (Canna France)
University of Paris I Panthéon-Sorbonne
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Addleshaw Goddard (Paris)
On 16 January 2020, the Paris Court of Appeal confirmed the 2018 decision of the French Competition Authority ("FCA") to fine several producers and wholesalers active in the sale of liquid fertilizers for domestic cultivation for having imposed vertical restraints. WHAT YOU NEED TO KNOW - KEY (...)

The EU Court of Justice dismisses an appeal seeking to set aside an earlier judgement by the General Court sanctioning a cartel of manufacturers of power cables (Verwaltungs)
ADNOC Group (Abu Dhabi)
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Ashurst (Brussels)
On 14 November 2019, the European Court of Justice ("ECJ") dismissed the appeal in case C-599/18 P brought by Silec Cable ("Silec"), which sought to set aside an earlier judgment by the General Court upholding the European Commission’s ("Commission") power cables decision. WHAT YOU NEED TO KNOW (...)

The UK Court of Appeal slashes a cartel follow-on damages award and emphasises claimants’ burden to prove losses in a claim brought by power cable manufacturers for market-sharing and customer allocating (BritNed / ABB)
Ashurst (London)
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Ashurst (London)
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Ashurst (London)
BritNed Development Limited ("BritNed") brought a claim against ABB arising from the European Commission’s 2014 power cables cartel decision. In October 2018, the High Court found that there had been no overcharge but awarded damages for "baked-in inefficiencies" and "cartel savings" plus simple (...)

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 Chinese Supreme Court rules that Chinese antitrust authorities do not have to prove the anti-competitive effects of companies’ resale price maintenance conduct (Hainan Yutai Technology Feed)
Hogan Lovells (Shanghai)
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Hogan Lovells (Beijing)
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Hogan Lovells (Beijing)
NEITHER FISH NOR FOWL – CHINA’S SUPREME COURT PROPOSES NEW FRAMEWORK FOR RESALE PRICE MAINTENANCE* In the last week of June 2019, a copy of a ground-breaking court ruling emerged on social media in China – the order by the Supreme People’s Court (SPC) in the case between Yutai Technology Feed (...)

The US FTC concludes that a pharma company entered into an illegal pay-for-delay agreement (Endo / Impax)
Hausfeld (Philadelphia)
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Hausfeld (Washington)
On March 28, 2019, the Federal Trade Commission (the “Commission”) issued a landmark opinion in the agency’s case against Impax Laboratories Inc. regarding its patent settlement with Endo Pharmaceuticals Inc., marking the first time that the Commission has weighed in on the proper application of (...)

The Italian Government confirms that the Italian Competition Authority wrongly established a bid-rigging practice in the medical sector (Alliance / Siemens / Philips / Toshiba / AGCM)
Giannino SI (Monserrato)
By its recent judgment in Magnetic Resonance Imaging Scanners (MRI Scanners) the Italian Council of State uphold on appeal the judgement previously handed down by the Regional Administrative Court of Latium (TAR Latium). The TAR Latium set aside a decision made by the Italian Competition (...)

The German Federal Court of Justice decides that in a quota-fixing and customer-assigning cartel the prerequisites for prima facie evidence to establish whether the cartel has inflicted damage and whether it has affected individual orders are not fulfilled (Rail cartel)
Noerr (Berlin)
German Federal Court of Justice: no double prima facie evidence in cartel damages litigation* In a landmark ruling dated 11 December 2018 (KZR 26/17 – “rail cartel”), the German Federal Court of Justice decided that, in a quota-fixing and customer-assigning cartel, the prerequisites for prima (...)

The Italian Administrative Court of First Instance rejects the appeals against the Competition Authority’s decision fining a cartel in the cement sector
Studio Legale Scoccini (Rome)
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Studio Legale Scoccini (Rome)
With a series of decisions published between 12/06/2018 and 30/07/2018, the Regional Administrative Court of Lazio, which is the first instance court for the appeal against the decisions of the Italian Competition Authority, rejected all the appeals against the decision ascertaining a cartel in (...)

The U.S. Court of Appeals for the Second Circuit affirms a grant of summary judgment in favor of defendants in an old case alleging an unlawful conspiracy in the single-copy magazine industry (Anderson News)
Dechert (Philadelphia)
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Dechert (Philadelphia)
The U.S. Court of Appeals for the Second Circuit affirmed a grant of summary judgment on July 19, 2018, in favor of defendants in a nearly decade-old case alleging an unlawful conspiracy in the single-copy magazine industry. The decision clarifies the application of the Supreme Court’s (...)

The Indian Competition Authority fines state chemists’ association and 3 pharma companies for anticompetitive practice of "No Objection Certificates" prior to appointment of stockists (Alis Medical Agency / Federation of Gujarat State Chemists & Druggists Associations)
Vaish Associates Advocates (New Delhi)
CCI imposes penalties on the Chemists’ Associations in State of Gujarat and three pharma companies for indulging in practice of “No Objection Certificate” before appointment of stockists* The Competition Commission of India (“CCI”) by way of an order dated 12 July 2018 has imposed penalty on the (...)

The Tenth Administrative Court of Ankara annuls the decision of the Turkish Competition Authority in a case regarding concerted practices between cement producers because the standard of proof was not met (GOLTAS Cement)
ACTECON (Istanbul)
The Turkish Competition Authority (“TCA”) had found that six cement producers operating in the Aegean Region of Turkey entered into a concerted practice to allocate certain geographical regions amongst themselves and to collectively raise the prices of cement products during the time period (...)

The Indian Competition Authority widens the scope of bid rigging and exonerates 9 suppliers of air conditioning packages from allegations of bid rigging despite instances of identical bids (Kapurthala Rail Coach Factory / AC package suppliers)
Vaish Associates Advocates (New Delhi)
CCI exonerates 9 supplier from bid rigging in railway tenders * The Competition Commission of India (‘CCI’) vide its order dated November 28, 2017 has exonerated nine RDSO [Research Designs & Standards Organisation] approved suppliers (“Opposite Parties”), including four sister companies, of (...)

The EU General Court partially annuls the Commission decision fining a financial company for facilitating cartels in the market of interest rate derivatives in Japanese yen (Icap)
Van Bael & Bellis (Brussels)
On 10 November 2017, the General Court (“GC”) partially upheld the appeal lodged by Icap plc, Icap Management Services Ltd and Icap New Zealand Ltd (“Icap”) against a Commission decision ning Icap € 14.9 million for facilitating cartels in the market for interest rate derivatives in Japanese yen (...)

The EU General Court finds flaws in the EU Commission’s decision and quashes the €14,9 million fine, but sustains underlying liability for “facilitation” of a cartel (Icap)
Simmons & Simmons (London)
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Simmons & Simmons (London)
The General Court’s November 2017 judgment is not such welcome news to ICAP as it might first appear. ICAP’s appeal against a 2015 infringement decision was successful insofar as the fines imposed on it will now be trimmed, but in the main the General Court supported the European Commission’s (...)

The Indian Competition Authority dismisses allegations of anticompetitive conduct against 2 professional film associations due to lack of evidence (Film Distributors Association / Kerala Film Producers Association)
Vaish Associates Advocates (New Delhi)
The Competition Commission dismisses allegations of anti-competitive conduct against the Kerala Film Producers Association* The CCI vide its order dated October 3, 2017 dismissed allegations of contravention of Sections 3 and 4 of the Act.The Informant, P. V. Basheer, exhibits movies in his (...)

The US Court of Appeals for the Third Circuit raises the bar for plaintiffs for a price-fixing action by setting a “more likely than not” standard to evaluate circumstantial evidence (Valspar / DuPont de Nemours)
Hausfeld (San Francisco)
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Hausfeld (San Francisco)
In its recent decision in Valspar Corp. v. E.I. DuPont de Nemours & Co., the Third Circuit raised the bar for plaintiffs opposing summary judgment in antitrust cases by setting a “more likely than not” standard to evaluate circumstantial evidence—a standard the dissent called an “unworkable (...)

The Latvian Supreme Court mandates that to conclude the existence of anticompetitive object, the economic context of the agreement must be fully ascertained (Visma Enterprise)
Vilgerts (Riga)
On 9 December 2013 the Latvian Competition Council passed decision no. E02-61, whereby it established existence of prohibited vertical agreement. The agreement concerns the right of distribution of an accounting program, owned by SIA „Visma Enterprise”. The fine was imposed upon Visma Enterprise (...)

The Turkish Competition Authority finds no evidence on exclusionary practices by incumbents against a new entrant in the market for meal cards (Metropal)
Ankara Hacı Bayram Veli University (Ankara)
This case note analyses the decision of the Turkish Competition Authority (TCA) in which it has rejected the complaint due to lack of evidence that the incumbent undertakings in the market for meal cards collectively resorted to certain exclusionary practices upon the entry into market of the (...)

The Indian Competition Appellate Tribunal reverses the Competition Authority’s fine due to mistakes in the investigation in the chemists’ association cartel (AIOCD All India Organization of Chemists & Druggists / OPPI Organization of Pharmaceuticals Producer of India)
Vaish Associates Advocates (New Delhi)
COMPAT sets aside penalty imposed by CCI on All India Organization of Chemists and Druggists for cartelization* Competition Appellate Tribunal (COMPAT) by its order dated December 9, 2016 has set aside the orders dated 19.2.2013, 09.12.2013 passed by the Competition Commission of India (CCI) (...)

The Brazilian Administrative Council For Economic Defence’s Tribunal provides further guidance for the assessment of international cartels and indicates when they are considered as able to produce effects in Brazil (Elpida / Mitsubishi / Nanya / NEC / Toshiba)
Mattos Filho Veiga Filho Marrey Jr & Quiroga (New York)
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Mattos Filho, Veiga Filho, Marrey Jr. & Quiroga (Sao Paulo)
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Mattos Filho, Veiga Filho, Marrey Jr. & Quiroga (Sao Paulo)
CADE’s Tribunal provided, during judgment sessions held between August and November of 2016, further guidance for the assessment of international cartels, indicating when they are considered able to produce effects in Brazil, in breach of Brazilian competition law. These decisions were issued (...)

The Advocate General Kokott delivers her opinion on an appeal lodged before the EU Court of Justice against a judgment upholding the Commission’s decision in finding an illegal price-fixing cartel (Pacific Fruit)
Van Bael & Bellis (Brussels)
Summary On 17 November 2016, Advocate General (“AG”) Kokott delivered her opinion on an appeal lodged before the European Court of Justice (“ECJ”) by Pacific Fruit (and its parent companies) against a judgment of the General Court (“GC”) upholding the European Commission’s decision finding an (...)

The Indian Competition Appellate Tribunal reverses the Competition Authority’s fine on pharmaceutical companies in a bid-rigging case (GlaxoSmithKline / Sanofi)
Vaish Associates Advocates (New Delhi)
COMPAT sets aside penalty against GSK Pharmaceuticals Ltd. (GSK) and Sanofi Ltd. (Sanofi) for alleged bid-rigging in procurement of meningitis vaccine for Haj and Umrah pilgrims by Ministry of Health and Family Welfare* COMPAT by its order dated November 8, 2016, has set aside the penalty (...)

The Italian Lazio Administrative Court upholds almost all the findings of the Competition Authority of a collusion in public contracts procurement (School Cleaning Services)
Giannino SI (Monserrato)
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 EU General Court relies on secretly-recorded telephone conversations obtained in the context of unannounced inspections (North Sea Shrimps)
Van Bael & Bellis (Brussels)
Under Article 2 of Regulation 1/2003, the Commission has the burden of proving an infringement of Article 101 TFEU. In the present case, as evidence of the cartel infringement, the Commission relied on secretly-recorded telephone conversations, and the transcripts or notes made thereof, which (...)

The EU General Court rules on the legitimacy of settlement agreements in the pharmaceutical sector (Lundbeck)
Peters & Peters (London)
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Peters & Peters (London)
Lundbeck - Buying off the competition* On 8 September 2016, the ECJ handed down its judgment in the latest battle between pharmaceutical companies and competition authorities over “pay for delay” agreements. The appeal of H Lundbeck A/S and Lundbeck Ltd (together “Lundbeck”) against the decision (...)

The EU General Court confirms the Commission’s decision concerning its first pharma pay-for-delay case (Lundbeck)
University of East Anglia (Norwich)
General Court’s pay for delay judgment in Lundbeck – some guidance, but worries remain*On 8 September, the General Court handed down its eagerly awaited decision in Lundbeck – the first ever European judgment concerning so-called pay for delay settlements. The Commission’s decision in this case was (...)

The EU General Court hands down a judgment concerning an appeal brought by an undertaking and several generic companies against an EU Commission decision which found that the parties had breached Article 101 TFEU by agreeing to delay the market entry of a generic drug (Lundbeck)
Herbert Smith Freehills (London)
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Herbert Smith Freehills (Brussels)
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Simmons & Simmons (London)
On 8 September 2016 the General Court (GC) handed down its judgments in relation to the appeals brought by Lundbeck and a number of generic companies (Sun Pharma (Ranbaxy), Arrow, Generics UK, Merck and Xellia/Alpharma) against a European Commission (Commission) decision finding that the (...)

The EU General Court upholds the EU Commission’s landmark patent settlement agreement decision (Lundbeck)
Sidley Austin (London)
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Willkie Farr & Gallagher (London)
EU General Court upholds Commission’s landmark Patent Settlement Agreement decision* In a much-anticipated series of judgments, running to some 579 pages, the EU’s General Court on 8 September 2016 upheld a 2013 decision of the European Commission that imposed fines of almost €150 million on the (...)

The Chinese High Court of Beijing rejects an appeal in China’s first follow-on private action against six infant formula suppliers for engaging in resale price maintenance (Junwei Tian / Carrefour / Abbott)
Freshfields Bruckhaus Deringer (Hong Kong)
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Freshfields Bruckhaus Deringer (London)
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Freshfields Bruckhaus Deringer (Beijing)
In one of the most notable decisions at the end of last year, the Beijing High Court rejected an appeal in China’s first follow-on private action in Junwei Tian v. Beijing Carrefour Shuangjing Store and Abbott Shanghai. The claim followed the decision in 2013 of China’s National Development and (...)

The Indian Competition Appellate Tribunal reverses the Competition Authority’s decision and removes penalties for cartelization in packaging materials for sugar (Indian Jute Mills Association / Gunny Trade Association)
Vaish Associates Advocates (New Delhi)
COMPAT sets aside CCI order penalizing Jute Mills Association for alleged cartelization for packaging material for sugar, etc.* COMPAT by its order dated July 1, 2016 has over-ruled the order of CCI wherein the Indian Jute Mils Association (IJMA) and Gunny Trade Association (GTA) were (...)

The Indian Competition Authority clarifies that mere collusion or coordination is not enough to find undertakings contravene the provisions of the Competition Act (Shri Nirmal / Ruchi Soya / Betul Oils / Ganganagar)
Vaish Associates Advocates (New Delhi)
CCI: Mere collusion or coordination is not enough to hold the Parties in contravention of the provisions of the Competition Act* The CCI, by way of its order dated June 28, 2016 held that M/s Ruchi Soya Industries Ltd., M/s Betul Oils Ltd and M/s Ganganagar Commodity Ltd. were not in (...)

The US Supreme Court reviews the a decision from the Court of Appeals on standing in antitrust cases (Visa / Mastercard)
Wolters Kluwer (Riverwoods)
Supreme Court Agrees to Consider Sufficiency of Antitrust Conspiracy Allegations in the Context of Business Associations*Last week, the U.S. Supreme Court wrapped up its regular business for the October 2015 term, but not before deciding to put an antitrust case on the docket for the next term. (...)

The Italian Regional Administrative Court of Latium sets aside a previous infringement decision made by the Italian Competition Authority on a bid-rigging practice (Rai servizi Post-Produzione)
Giannino SI (Monserrato)
By a judgment issued in Rai servizi post-produzione the Regional Administrative Court of Latium (the Court) reversed a previous infringement decision made by the Italian Competition Authority (ICA). The Court held that the ICA failed to establish an anti-competitive concerted practice to the (...)

The Indian Competition Appellate Tribunal cancels fines for bid rigging against 12 ordnance factory suppliers due to lack of evidence and investigation errors by the Competition Authority and clarifies that identical bids are not prima facie collusive (Narendra Explosive)
Vaish Associates Advocates (New Delhi)
COMPAT sets-aside penalty imposed on 12 suppliers to ordnance factories for indulging in cartelization for supplying raw material that is used for manufacturing of 81 mm bomb* COMPAT by its order dated May 10, 2016 has set-aside the order of CCI where it had imposed a penalty to the tune of (...)

The Indian Competition Appellate Tribunal annuls a fine for alleged collusion by a professional transport association due to lack of evidence by the Competition Authority (Indian Foundation of Transport Research & Training / All India Motor Transport Congress)
Vaish Associates Advocates (New Delhi)
COMPAT sets-aside penalty imposed on All India Motor Transport Congress (AIMTC) for alleged increases of transport rates in collusion* COMPAT by its order dated April 18, 2016 has set-aside the order of CCI where AIMTC was penalized for allegedly exhorting truck transporters for increasing (...)

The Indian Competition Appellate Tribunal asks the Competition Authority to reconsider big-rigging fines issued against 47 manufacturers (ECP / SKN / IOCL India Oil)
Vaish Associates Advocates (New Delhi)
Competition Appellate Tribunal (COMPAT) directs Competition Commission of India (CCI) to reconsider penalties imposed on LPG manufacturers* COMPAT by its order dated March 1, 2016 has directed CCI to reconsider penalties imposed on the 47 LPG manufactures for bigrigging in procurement of 14.2 (...)

The Indian Competition Appellate Tribunal upholds the dismissal of a bid-rigging case finding that in oligopolies identical bids are not prima facie anticompetitive (Faiveley Transport India / Knorr Bremse India)
Vaish Associates Advocates (New Delhi)
COMPAT upholds order of CCI closing bid-rigging case against railway suppliers of Axle Mounted Disk Braking System (ADBMS)* COMPAT by its order dated February 17, 2016 has upheld the order of CCI closing the case for bid-rigging for supply of Axle Mounted Disk Braking System (ADBMS) to Indian (...)

The Australian Federal Court dismisses cartel case against association of egg producers due to insufficient evidence of intent to enter into collusive agreement (Australian Egg Corporation)
Jones Day (Melbourne)
In a rare case brought under the cartel laws, the ACCC has failed to establish that the Australian Egg Corporation Limited and two egg producers attempted to induce 19 egg producers to make an arrangement to reduce the production of eggs in Australia. While the Court considered that the ACCC (...)

The Indian Competition Appellate Tribunal cancels fine due to the lack of evidence against individual executive member of charged association and investigation errors (Swapan Kumar Karak)
Vaish Associates Advocates (New Delhi)
COMPAT quashes penalty for individual liability imposed on a member of Executive Committee of a pharmaceutical distributors’ association* COMPAT vide its order dated December 7, 2015 set-aside the penalty of INR 47, 63,579/- imposed by CCI on Shri Swapan Kumar Karak (Director, Karak (...)

The Competition Commission of India fines a pharmaceutical laboratory and a pharmacists association for anticompetitive agreement (Alkem / AKCDA)
Meta (New Delhi)
On 1 December 2015 the Competition Commission of India (CCI/Commission) passed an order fining Alkem Laboratories Limited (Alkem) and the All Kerala Chemist and Druggist Association (AKCDA) for violation of the Competition Act, 2002 (Competition Act). The alleged conduct was held to be an (...)

The Indian Competition Appellate Tribunal dismisses allegations of anticompetitive conduct against film chamber of commerce due to mistakes in investigation by the Competition Authority (Cinergy Independent Film Service / Andhra Pradesh Film Chamber of Commerce)
Vaish Associates Advocates (New Delhi)
Competition Appellate Tribunal set asides the penalty imposed by CCI against Andhra Pradesh Film Chamber of Commerce* Competition Appellate Tribunal (“COMPAT”)in its judgment dated October 14, 2015 set aside the penalty of INR 12.89 lacs imposed by CCI on Andhra Pradesh Film Chamber of Commerce (...)

The US Court of Appeals for the Fourth Circuit turns on the interpretation of the Twombly plausibility standard and the application of the Supreme Court’s precedent on pleading standards to antitrust actions at early stages of litigation (Sawstop / Black & Decker)
Siemens (New York)
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Patterson Belknap Webb & Tyler (New York)
Divided Fourth Circuit Panel Slices Up Twombly in Table Saw Boycott Suit* Last week, a divided three-judge panel of the Fourth Circuit issued a significant decision in a boycott conspiracy case, SD3, LLC v. Black & Decker, No. 14-1746 (4th Cir. Sept. 15, 2015). The suit, at its heart, (...)

The Italian Council of State says that major ferry companies did not agree to increase fares for the Sardinia-Continental Italy maritime links (Sardinia Ferries Fares)
Giannino SI (Monserrato)
By a recent judgment made on 11 June 2013 in the Sardinia Ferries Fares case1, the Italian Council of State (CS) has rejected the appeal filed by the Italian Competition Authority (ICA) against the judgment of administrative court of first instance (Tar Lazio)2, which overturned the (...)

The Spanish Competition Authority fines undertakings for an agreement and concerted practices during the purchase of soccer broadcasting rights (Telefónica / DTS)
European Commission - DG COMP (Brussels)
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Liège University (Liège)
I. The Parties. Defendants: DTS Distribuidora de Televisión Digital, S.A. (DTS) is a company specialising in the management of the platform of satellite pay-TV Canal+. Grupo Telefónica is a group of companies specialising in telecommunications formed by the parent company Telefónica, S.A. and (...)

The Turkish Competition Authority closes the investigation it launched ex officio into consumer electronics suppliers and retailers for exchange of information (Samsung / Gold)
Ankara Hacı Bayram Veli University (Ankara)
This case note analyses the decision of the Turkish Competition Authority (TCA) in which it has decided that consumer electronics suppliers and retailers did not restrict competition by exchanging information with regard to price increases and decreases. Background Opened ex officio, the (...)

The Indian Competition Commission fines pharmaceutical companies for bid rigging in a public tender sector (GlaxoSmithKline / Sanofi)
Chandhiok & Mahajan (New Delhi)
CCI fines GSK and Sanofi for bid rigging* It has been quite a while since I posted an India update on Cartel Capers. This was partly due to the fact that the CCI has been relatively quiet on the cartel front for the last few months and partly because I have also been relatively busy with (...)

The Indian Competition Authority clears 3 vertically related organizations in the housing market from allegations of collusion because their standard clauses are not proven to determine purchase prices (Bombay Dyeing / CREDAI / MCREDAI)
Vaish Associates Advocates (New Delhi)
CCI dismisses allegations of cartelisation against Bombay Dyeing & Manufacturing Company Limited, Confederation of Real Estate Developers Association of India& Maharashtra Chamber of Housing Industries* CCI by its order dated May 19, 2015 exonerated Bombay Dyeing Manufacturing Company (...)

The Californian Supreme Court crafts a structured rule of reason test for evaluating pay-for-delay settlements (Cipro)
Siemens (New York)
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Patterson Belknap Webb & Tyler (New York)
Following Actavis, California Supreme Court Crafts “Structured Rule of Reason” Test for Evaluating Pay-for-Delay Settlements* Last Thursday the Supreme Court of California decided In re Cipro Cases I & II, No. S198616 (Cal. May 7, 2015), holding that reverse payment, or “pay-for-delay,” (...)

The Californian Supreme Court delineates a structured rule of reason analysis for evaluating reverse payments or pay-for-delay settlements (Cipro)
Sheppard Mullin (San Francisco)
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Sterlington
California Supreme Court Delineates a Structured Rule of Reason Analysis for Evaluating Reverse Payment or Pay-for-Delay Settlements* On May 7, 2015, the California Supreme Court issued its long-awaited decision in In re Cipro Cases I & II, Case No. S198616 (May 7, 2015) (Cipro). Cipro (...)

The U.S. District Court for the Eastern District of Pennsylvania holds that a firm which has engaged in fraud on the patent office cannot stand on its patent to defend reverse payment antitrust claims (Cephalon)
Sheppard Mullin (San Francisco)
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Sheppard Mullin (Washington)
Last year in a landmark decision, the Supreme Court ruled that pharmaceutical “reverse payment” settlements in Hatch-Waxman Act “Paragraph 4” patent litigation are subject to challenge, departing from the rule that most Circuits had adopted. FTC v. Actavis, 133 S.Ct. 2223 (2013). In these cases, (...)

The US Court of Appeals for the Seventh Circuit rejects a claim of collusion in the text messaging sector and reminds the limits of "hot" documents (Text messaging)
BakerHostetler (Washington)
Collusion Course: The Limits of Hot Documents* Discovery in antitrust cases often involves a search for smoking-gun documents. Those documents can consist of emails proving that competitors conspired to raise prices, removing the difficulties faced by prosecutors or civil plaintiffs in proving (...)

The US Court of Appeals for the Ninth Circuit stresses the importance for Sherman Act litigants to support their claims of antitrust injury-in-fact with market facts (Netflix)
Siemens (New York)
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Patterson Belknap Webb & Tyler (New York)
Ninth Circuit Affirms Dismissal of Netflix Antitrust Suit* Last Friday, the Ninth Circuit affirmed the dismissal of a multidistrict class action brought by Netflix subscribers who claimed the company conspired with Walmart to dominate the online DVD sales and rental markets. In 2005, Netflix (...)

The US District Court for the Eastern District of New York reminds that potential defendant cases should be prepared to address a plaintiff’s “direct evidence” of harm to competition and may not be able to solely rely on its relative market share as a defense (American Express)
Patterson Belknap Webb & Tyler (New York)
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Patterson Belknap Webb & Tyler (New York)
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Patterson Belknap Webb & Tyler (New York)
Court Rules Against American Express Based on Both Direct and Indirect Evidence of Harm to Competition* On February 19, 2015, the District Court for the Eastern District of New York issued its ruling on liability in United States v. American Express. Following a seven-week trial, the Court (...)

The Indian Competition Commission fines a trade association for calling for price hike (All India Motor Transport Congress)
Chandhiok & Mahajan (New Delhi)
CCI fines All India Motor Transport Congress for calling for price hike* The Competition Commission of India (CCI) imposed the maximum penalty of 10% of the average turnover on the All India Motor Transport Congress (AIMTC) the apex trade association for road transport service providers (both (...)

The US District Court for the Northern District of California receives a complaint likely to provide lessons about manufacturers’ efforts regarding resale prices (Costco / Johnson & Johnson)
Bona Law (Detroit)
Costco v. J&J: The Latest and Largest in a Long Line of Pricing Cases* It’s not often that one Fortune 50 company sues another – but that’s what happened earlier this week when Costco sued Johnson & Johnson (J&J) in California federal court over J&J’s attempts to limit Costco’s (...)

The Indian Competition Authority clears an alleged cartel for lack of evidence and provides guidance on cross-examination issues (Confederation of Real Estate Developers’ Association of India)
Chandhiok & Mahajan (New Delhi)
CCI finds no evidence of a cartel amongst builders but still passes strong observations against exploitative and unfair practices adopted by these builders* The CCI recently closed its investigation into an alleged cartel among builders in India finding insufficient evidence of a cartel (...)

The US District Court for the Eastern District of Pennsylvania holds the practice of a pharmaceutical company that does not require plaintiffs to meet any “threshold burden” in establishing a large reverse payment as unjustified in triggering analysis under antitrust rules of reason (Cephalon)
DiCello Levitt (New York)
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Arnold & Porter Kaye Scholer (Washington)
In re Modafinil Litigation Finds No “Threshold Burden” in Reverse Payment Suit* On Wednesday, January 28, in King Drug Company of Florence, Inc. v. Cephalon, Inc. (In re Modafinil), the US District Court for the Eastern District of Pennsylvania held that FTC v. Actavis, 133 S. Ct. 2223 (2013), (...)

The US District Court for the Eastern District of Pennsylvania sends a second reverse-payment case to trial (Cephalon)
Rutgers University (Camden)
On January 28, 2015, Judge Mitchell Goldberg of the U.S. District Court for the Eastern District of Pennsylvania denied defendants’ summary judgment motions, sending the second reverse-payment-settlement case to trial. In King Drug Company of Florence v. Cephalon, 2015 WL 356913 (E.D. Pa. Jan. (...)

The US Supreme Court redefines the standard of appellate review for claim construction (Teva)
White & Case (Palo Alto)
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White & Case (Palo Alto)
On January 20, 2015, the United States Supreme Court redefined the standard of appellate review for claim construction. In Teva Pharm. USA, Inc. v. Sandoz, Inc., the Supreme Court vacated well-established Federal Circuit precedent that applied de novo review to all aspects of claim (...)

The US Court of Appeal for the 5th Circuit leaves open the possibility that a single entity could conspire with its own members or sub-parts (Abraham & Veneklasen / AQHA)
Siemens (New York)
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Patterson Belknap Webb & Tyler (New York)
When Can an Organization Conspire with Itself?* The U.S. Court of Appeals for the Fifth Circuit last week reversed a jury verdict and rendered judgment for American Quarter Horse Association (AQHA) in a much-contested antitrust case about AQHA’s ban of cloned horses. The Fifth Circuit left open (...)

The US Court of Appeal for the 5th Circuit decides on whether a "standard-setting" association should be considered as a single entity and dismisses the case for lack of evidence (Abraham & Veneklasen / AQHA)
Constantine Cannon (Washington)
Fifth Circuit Rejects Jury Verdict Of Quarter Horse Conspiracy, Finding Elite Animal Registries To Be A Horse Of A Different Color* A panel of the U.S. Court of Appeals for the Fifth Circuit has reversed a jury’s verdict that a horse breeding association illegally conspired with some of its (...)

The US Court of Appeal for the 5th Circuit dismisses a claim against a standard setting association because of lack of evidence supporting an actionable conspiracy or monopoly (Abraham & Veneklasen / AQHA)
Sheppard Mullin (Los Angeles)
American Quarter Horse Association Rule Against Registration of Cloned Horses Found Not To Violate Sherman Act* A Matsushita “Quick Look” Analysis Demonstrates that While Plausible, No Evidence Supports An Actionable Conspiracy or Monopoly. Abraham & Veneklasen Joint Venture et al. v. Am. (...)

The Indian Competition Authority initiates an investigation concerning resale price maintenance in the e-commerce sector (Jasper Infotech / KAFF Appliances)
Sarvada Legal (New Delhi)
The CCI has in 2014 initiated two investigations into the alleged imposition of minimum resale price maintenance (RPM). The first one was against Hyundai Motor India Ltd (‘Hyundai Case’) and I had written on the legal standard adopted by the Competition Commission of India to initiate (...)

The US Court of Appeals for the Sixth Circuit upholds the dismissal of price-fixing claims against two home brokerage service firms because circumstantial evidence did not exclude the possibility of independent conduct (Hyland / HomeServices of America)
McDermott Will & Emery (Brussels)
On November 13, 2014, the Sixth Circuit Court of Appeals upheld the dismissal of price-fixing claims against two home brokerage service firms in Kentucky, McMahon Co. and HomeService of America, Inc. Hyland, et al. v. HomeServices of America Inc., et al., case number 12-5947. The plaintiffs, (...)

The US District Court for the Eastern District of Pennsylvania rules that claims of “good faith reliance on counsel” were not sufficient to maintain a Capper-Volstead affirmative defence to allegations that immunity had been forfeited by the inclusion of non-producer members (Mushroom Direct Purchaser)
Sheppard Mullin (Los Angeles)
Agricultural Cooperative Antitrust Litigation Continues to Mushroom* Pennsylvania District Court certifies five year ruling for interlocutory appeal, that mushroom cooperative is not immune from antitrust claims based upon “advice of counsel” argument. In Re Mushroom Direct Purchaser Antitrust (...)

The US District Court for the Eastern District of Pennsylvania rules that claims of “good faith reliance on counsel” were not sufficient to maintain a Capper-Volstead affirmative defence to the antitrust laws (Mushroom Direct Purchaser)
BakerHostetler (Washington)
Mushroom Court Ruling Sprouts Controversy on Whether Reliance on Lawyer Advice Maintains Affirmative Defense to Antitrust Claims* A federal district court recently ruled that claims of “good faith reliance on counsel” were not sufficient to maintain a Capper-Volstead affirmative defense to the (...)

The US District Court for the Northern District of California finds lack of antitrust standing for price-fixed component parts in states that apply the AGC 5-factor test but allowed standing in states that do not (Los Gatos Mercantile / DuPont)
McDermott Will & Emery (Washington)
On Sept. 22, 2014, the U.S. District Court for the Northern District of California issued an important opinion regarding antitrust standing in Los Gatos Mercantile, Inc. v. E.I. DuPont de Nemours & Co. (DuPont), No. 13-cv-01180-BLF (N.D. Cal. Sept. 22, 2014). The DuPont opinion is one of (...)

The EU Court of Justice clarifies the interpretation of the notion of restriction "by object" in a case regarding payment card rules (Groupement des Cartes Bancaires)
London School of Economics (London)
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Garrigues (Brussels)
This article has been nominated for the 2015 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. September 11 2014 was a big day for antitrust at the European Court of Justice. The Court delivered two important Judgments in the Mastercard and Cartes (...)

The EU Court of Justice confirms a ruling of the General Court on multilateral interchange fees (MasterCard)
Studio Legale Scoccini (Rome)
On September 11, 2014 the Court of Justice handed down its judgment in the multilateral interchange fees (MIFs) case dismissing MasterCard’s final appeal against the European Commission’s decision that ordered MasterCard to withdraw its MIFs. Interchange fees are balancing payments made by the (...)

The EU Court of Justice clarifies the object-effect dichotomy and deals with two-sided markets (Groupement des Cartes Bancaires)
University of Groningen
It Takes Two to Tango: Two-Sided Markets and the Appeals in Cartes Bancaires and MasterCard* The Court has recently decided on the appeals in two seminal cases: MasterCard MIF (MasterCard) and Groupement des Cartes Bancaires (CB). Both cases result from Commission decisions that found Article (...)

The EU Court of Justice dismisses the final appeal in a case regarding inter-bank card fees (MasterCard)
Constantine Cannon (London)
On 11 September 2014, the Court of Justice of the European Union (“CJEU”) dismissed MasterCard’s final appeal against an antitrust infringement decision of 2007. This judgment finally put an end to a seven-year long legal battle over inter-bank card fees and may have a profound impact on banks, (...)

The US District Court for the Southern District of New York finds that plaintiffs adequately plead a conspiracy to restrain trade because the defendants “abruptly and simultaneously” switched their positions and harmed their interests (Credit Default Swaps)
Siemens (New York)
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Hartline Barger (Mexico)
In re Credit Default Swaps Antitrust Litigation: Big Banks Still Must Face Section 1 Sherman Act Claim* In a decision upholding most of the class action antitrust claims against 12 of the world’s largest financial institutions, Judge Cote of the Southern District of New York held that the (...)

The US District Court for the Southern District of New York refuses to dismiss a class-action regarding an antitrust lawsuit on the basis that plaintiffs had alleged facts that showed a plausible conspiracy (Credit Default Swaps)
Constantine Cannon (Washington)
Credit Default Swap Class Action Clears Motions To Dismiss And Proceeds To Discovery* On Thursday, Judge Denise Cote of the U.S. District Court for the Southern District of New York refused to dismiss a class-action antitrust lawsuit involving the $21 trillion credit default swap (“CDS”) market, (...)

The US District Court for the District of New Jersey dismisses price-fixing complaint against 16 magnesite producers (Animal Sciences Products / China National Metal & Minerals Import and Export)
McDermott Will & Emery (Los Angeles)
On July 24, 2014, the district court in Animal Sci. Prod., Inc. et al. v. China Nat’l Metals & Minerals Imp. and Exp. Corp. et al., Case No. 2:05-cv-04376 (D.N.J.), dismissed direct purchaser plaintiff’s Amended Complaint without prejudice in favor of magnesite producers accused of engaging (...)

US District Judge for the Eastern District of Virginia rules that participating in a standard-setting body or being a member of a trade association is insufficient to state an antitrust conspiracy claim (SD3 / Black & Decker)
Sheppard Mullin (Los Angeles)
SD3 v. Black & Decker (U.S.), Inc. – District Judge Axes Complaint Alleging Table Saw Safety Standards Conspiracy* The pen may be mightier than the sword, but not necessarily mightier than the table saw. On July 15, 2014, in SD3 v. Black & Decker (U.S.), Inc., Case No. 1:14-cv-191 (E.D. (...)

The Kazakh Specialised Economic Court of Almaty finds no evidence of an anticompetitive concerted practice in the banking services market (Nurbank / Alliance Bank / Kazpost)
Center for Development and Protection of Competition Policy (Astana)
Facts Based on the Orders of the Antimonopoly Agency dated 26.08.2013 №68-ОД and 04.09.2013 №46-ОД, an investigation was conducted against JSC “Nurbank”, JSC “Alliance Bank” and JSC “Kazpost”, according to the results of which it awarded a decision dated 23.12.2013, as it is seen from the content of the (...)

The US District Court for the Eastern District of Pennsylvania dismisses allegations of hub-and-spoke conspiracy against 5 pharmaceutical companies in the market for narcolepsy drugs (Apotex / Cephalon)
McDermott Will & Emery (Washington)
On Monday, June 23, 2014, a Federal Judge in the Eastern District of Pennsylvania granted summary judgment for five pharmaceutical companies on horizontal conspiracy claims brought by Apotex Inc. and direct purchaser and end payor plaintiffs regarding the popular narcolepsy drug Provigil. (...)

The Lazio Regional Administrative Tribunal quashes the decision by which the Italian Competition Authority has sanctioned companies for illicit coordination and annuls the fines imposed (Moby / GNV / SVAV)
Poste Italiane (Rome)
By its decision of 14 June 2013, the Italian Competition Authority (“ICA”) found that in the summer of 2011 the main companies operating passenger ferry services between Italy and Sardinia - namely Moby S.p.A. (“Moby”), GNV and SVAV (together with Moby, “the Companies”) - reached a common (...)

The Italian Administrative Court of First Instance annuls the decision of the Italian Competition Authority that fined ferry operators for a concerted practice because it failed to meet the burden of the proof (Moby / GNV / SNAV / Marinvest)
Studio Legale Scoccini (Rome)
On 7 May 2014 the administrative court of first instance with jurisdiction on antitrust cases (TAR Lazio) annulled the decision of the Italian Competition Authority (ICA) . The ICA had fined ferry operators Moby, GNV and SNAV and Marinvest - the holding company of the latter two -, after it (...)

The Paris Court of Appeal orders to compensate companies in an amount of over € 1.6 million due to their damages resulting from an anti-competitive agreement on prices and sales volumes of synthetic lysine prohibited by the European Commission (Ajinomoto Eurolysine)
Norton Rose Fulbright (Paris)
,
Engie (Paris)
In a judgment dated February 27, 2014, the Court of Appeal of Paris (Court of Appeal) has, on remand from the Court of Cassation (Court), ordered Ajinomoto Eurolysine (AE) to compensate four companies in the Doux group (Doux) in an amount of over € 1.6 million due to their damages resulting (...)

The US Court of Appeals for the Ninth Circuit upholds a lower court’s judgement dismissing claims of conspiracy to restrain trade and attempted monopolization on the market for prosthetic microprocessor knees (DAW Industries / Hanger Orthopedic)
Sheppard Mullin (San Francisco)
Ninth Circuit Once Again Affirms That Malicious Actions To Destroy A Competitor Do Not State An Antitrust Claim Unless Accompanied By Injury To Competition* On February 24, 2014, the Ninth Circuit Court of Appeals affirmed the lower court’s grant of summary judgment dismissing DAW Industries’ (...)

The UK Competition Authority brings criminal charges against ex-manager following an investigation into suspected cartel conduct in respect of the supply of galvanised steel tanks for water storage (Peter Nigel Snee)
University of East Anglia (Norwich)
Can the OFT Succeed in its Latest Attempt at Bringing Criminal Charges Against an Individual for Cartel Conduct?* The Office of Fair Trading (OFT) has charged Peter Nigel Snee under section 188 of the Enterprise Act 2002. It is alleged that he ‘dishonestly agreed with others’ to fix prices, (...)

The UK Competition Appeal Tribunal rules that antitrust findings regarding the copper plumbing tubes cartel did not support the intent to injure required for a conspiracy claim brought under section 47A of the Competition Act (W.H. Newson / IMI)
London School of Economics and Political Science
Conspiracy, the CAT, and the Court of Appeal: “Here is a case unprecedented” (The Gondoliers, Act 2)* In W.H. Newson Holding Limited & ors v IMI plc & ors [2013] EWCA Civ 1377, the Court of Appeal has made some important new law regarding the scope of section 47A of the Competition Act (...)

The Spanish Supreme Court clarifies the passing-on defense in a landmark private enforcement case following the sugar cartel (Ebro Foods)
Callol, Coca & Asociados (Madrid)
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Callol, Coca & Asociados (Madrid)
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Callol, Coca & Asociados (Madrid)
In a landmark ruling, the Spanish Supreme Court has ordered the payment of a compensation for antitrust damages to several candy manufacturers (Judgment of 7 November 2013). The sugar “cartel” In a decision of 15 April 1999, the Spanish Competition Authority declared the existence of a price (...)

The Spanish Supreme Court confirms passing on defence subject to strict conditions in the second follow-on claim for an infringement of Antitrust rules against a cartel in the sugar sector (Spanish Sugar Cartel / TS Ebro)
3C Compliance (Madrid)
I. Facts: The Spanish Supreme Court, Tribunal Supremo, issued on 7 November, 2013 the second ruling about a follow-on damage claim against the Spanish Sugar Cartel . These claims were filed in the year 2007 before the local court of Madrid by several sweets and food producers against the (...)

The Canadian Supreme Court rejects the passing-on defence in relation to price fixing in the market for compatible PC software (Pro‑Sys Consultants / Microsoft)
Blackstone Chambers (London)
Canadian Supreme Court: No such thing as passing on defence* On Thursday last week the Supreme Court of Canada handed down three much-anticipated judgments concerning indirect purchaser claims. The trio of cases point towards a distinctive, and in many respects more claimant-friendly, approach (...)

The Canadian Supreme Court allows indirect purchaser claims for a cartel infringement in the market for processor compatible software (Infineon / Pro-Sys / Sun-Rype)
Davies Ward Phillips & Vineberg (Toronto)
Supreme Court of Canada Allows Indirect Purchaser Claims* Note: On October 31, 2013, Canada’s Supreme Court issued important decisions regarding the scope of private claims for civil damages under the Competition Act. Below is a note prepared by Davies Ward Phillips & Vineberg on these (...)

The Canadian Supreme Court clears the way for indirect purchaser competition class action related to compensation for harm caused by inflating the price of microchips (Infineon / Pro-Sys / Sun-Rype)
Steve Szentesi Law Corporation (Vancouver)
Canadian Supreme Court Clears the Way for Indirect Purchaser Competition Class Actions: Reason and Clarity Prevail in Previously Muddled Area* Earlier today the Supreme Court of Canada (“SCC”) released three long-awaited companion judgments that finally create clarity and certainty in the area (...)

The Australian Federal Court establishes that a defendant has been directly knowingly involved in an anti-competitive arrangement and imposes criminal sanctions (Chaste Corporation)
Australian Competition and Consumer Commission (Canberra)
Peter Foster sentenced for contempt of court* The Federal Court has sentenced Peter Foster to three years imprisonment, with 18 months to be served and 18 months suspended, for contempt of court. Justice Logan also placed conditions on Mr Foster’s involvement in the weight loss, cosmetic or (...)

The Botswana Competition Authority refuses to confirm settlement due to lack of evidence in connection with the respondent’s involvement in the alleged bid-rigging food cartel (Ya Raheem)
Norton Rose Fulbright (Johannesburg)
Due process arguments come to the fore as the Botswana Competition Authority gears itself for enforcement* In September and October, the Botswana Competition Commission (Commission) took its first two rulings on cartel enforcement. Both rulings have a keen (if not almost exhaustive) focus on (...)

The Chinese Higher Court of Shanghai renders final judgment in first antitrust private action (Rainbow / Johnson & Johnson)
King & Wood Mallesons (Beijing)
Chinese Court Rendered Final Judgment on Rainbow v. Johnson & Johnson – the First Antitrust Private Action of Vertical Monopolistic Agreement* On 1 August 2013, the very same day of the fifth anniversary of China’s Anti-Monopoly Law (“AML”), Shanghai Higher People’s Court (“Shanghai Higher (...)

The Bulgarian Competition Authority finds resale price maintenance practices on the sunflower oil market (Kaliakra)
University of Macau - Faculty of Law (Macau)
On 17 July 2013 the Bulgarian Competition Authority (CPC) prosecuted the producer of bottled sunflower oil Kaliakra AD (Kaliakra) and its distributors for engaging in the resale price maintenance (RPM) practices. The CPC’s investigation was commenced after the completion of the sector inquiry (...)

The Rotterdam District Court annuls two cartel decisions for misuse of telephone taps (Constructions cartel & Ship waste cartel)
Court of First Instance of Namur (Namur)
With two judgements of 13 June 2013 and 11 July 2013, the Rotterdam District Court annulled the decisions of the Dutch competition authority (now “ACM”) in a constructions cartel and a ship waste cartel. According to the Court, the telephone taps which provided evidence of the cartels could (...)

The US Supreme Court holds that patent protection does not confer immunity from an antitrust attack (Actavis)
Ashurst (Milan)
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RSM US (New York)
U.S. Supreme Court reverses Eleventh Circuit opinion in FTC v. Actavis, Inc* On 17 June 2013, the U.S. Supreme Court (“the Court”) reversed a decision by the Court of Appeals (Eleventh Circuit). The Court of Appeals had upheld a dismissal of a complaint made by the Federal Trade Commission (...)

The US Supreme Court opens reverse payment patent settlement agreements to antitrust challenge (Actavis)
Wolters Kluwer (Riverwoods)
A “reverse payment” settlement agreement is not entitled to “near-automatic antitrust immunity” simply because its anticompetitive effects fall within the scope of the exclusionary potential of the patent, the U.S. Supreme Court ruled earlier this week in a five-to-three decision. Although such (...)

The US Supreme Court establishes a rule that blurs the lines between antitrust and patent law (Actavis)
Sheppard Mullin (Chicago)
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Sterlington
FTC v. Actavis: What Does It Mean for Reverse-Payment Settlements?* On June 17, 2013, the United States Supreme Court announced a rule that blurs the lines between antitrust and patent law in the context of Hatch-Waxman litigation. In FTC v. Actavis, 570 U.S. 756 (2013), the Federal Trade (...)

The Canadian Court of Appeal of Alberta dismisses an action for damages in a conspiracy claim against joint purchasers in the oil industry (Alberta / Husky Oil Operations)
Conzen O’Connor (Toronto)
No pot of gold at the end of the Rainbow* A decision by joint operators of an oil field to use a single fluid hauler was not an unlawful conspiracy, the Alberta Court of Appeal held recently, overturning a 2011 decision that awarded about $8 million to the loser of a competitive bidding (...)

The Italian Supreme Court reaffirms the principle that infringement decisions of the Competition Authority constitute “privileged evidence” in follow on compensation claims (Private motor insurance cartel)
Pavia e Ansaldo (Roma)
On 04 March 2013, an order of the Corte di Cassazione - the Italian Supreme Court - reaffirmed the principle that infringement decisions of the Italian Competition Authority (ICA) constitute “privileged evidence” in follow on compensation claims. This order is related, yet again, to disputes (...)

The Chilean Competition Tribunal condemns trade association for collusion (ACHAP)
University College London (London)
On 29th January 2013, the Chilean Competition Tribunal (‘TDLC’) issued its judgment in the ACHAP case (Sentence 128/2013). The TDLC partially accepted the complaint filed by the competition agency (the “FNE”) against the local Advertising Agencies Trade Association (the “ACHAP”, for its Spanish (...)

The Spanish National Court issues a third judgment in the asphalt roads cartel case addressing the issue of the burden of proof in bid rigging cases (Asphalt roads cartel)
Bona Law (San Diego)
In October of 2012 the Spanish National Court (“NC”) concluded its first two judgments on the Spanish asphalt roads cartel (“the Cartel”). In both cases the NC explained how the companies involved in the public bid process decided in a “competitive way” who was going to win the bid. The NC stated in (...)

The EU Court of Justice establishes that a national competition authority does not have to prove appreciable effect on competition for object agreements (Expedia)
Lancaster University
Anti-Competitive Agreements: knowing your ‘object’ from your ‘appreciable’ Posted on February 11, 2013* In October 2012 Christopher Brown posted an interesting blog on AG Kokott’s opinion in Case C-226/11 Expedia. The full judgment was delivered on 13 December 2012 and it seems appropriate to look (...)

The Hungarian Court of Appeal upholds National Competition Authority’s decision and reduces fines in IT procurement case (SAP and others)
Lakatos, Köves (Budapest)
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Kinstellar (Budapest)
The background of the case In 2004, the Hungarian Competition Office (HCO) launched proceedings against International System House Kft. (ISH), SAP Hungary Kft. (SAP) and International Business Machines Magyarország Kft. (IBM) for bid-rigging in public procurement. The tenders in question aimed (...)

The Supreme Court of Chile heads towards a per se rule in the assessment of cartel cases (Explora)
University College London (London)
For the first time since the new Chilean Competition system started in 2004, the Supreme Court has overruled a decision of the Competition Tribunal in regard to a cartel case, which was not originally sanctioned by the latter. But also, the Supreme Court seems to have established a per se rule (...)

The US Court of Appeals for the 7th Circuit unanimously expands extraterritorial reach of US antitrust rules in a foreign price-fixing conspiracy case (Potash II)
Cleveland University - Marshall School of Law
Seventh Circuit Sitting En Banc Reverses in Potash, Announces Second Most Important of All FTAIA Opinions, Shores Up the Text Messaging Position on Conspiracy Pleading* Well, okay, I guess there might just possibly have been an appellate decision this week of even more pressing moment, but I (...)

The Canadian Competition Authority jointly lays 77 charges against 11 individuals and 9 companies in the construction industry in connection with a Quebec bid-rigging case (Carrière Bernier / Cie Wilfrid Allen)
Steve Szentesi Law Corporation (Vancouver)
This article has been nominated for the 2013 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. Competition Bureau Jointly Lays 77 Charges Against 11 Individuals and 9 Companies in Quebec Bid-rigging Case – Tough Stance on Criminal Enforcement Continues* On (...)

The Indian Competition Commission breaks up a cement cartel and fines cartelists with a record fine of RPS 60 billion (Cement Manufacturers Association)
Meta (Washington DC)
The Competition Commission of India (CCI) has fined eleven cement companies for fixing prices, and for limiting and controlling the output in the cement markets. The CCI has imposed record fines amounting to RPS 60 billion (approximately EUR 836 million) on the cartelists. Economic evidence, (...)

The US District Court for the Northern District of California denies motions for acquittal and for a new trial in LCD price-fixing conspiracy case (AU Optronics)
Wolters Kluwer (Riverwoods)
Convictions in LCD Panel Price Fixing Case Stand After Motions for Acquittal, New Trial Rejected* The government’s successful prosecution of AU Optronics Corporation, its wholly-owned U.S. subsidiary, and two former company executives serves as a cautionary tale. The case marks the first time a (...)

The Spanish Supreme Court confirms the judgment of the Valladolid Provincial Court in a sugar cartel (Nestlé / Gullón / Zahor)
IE Law School
The judgment of the Spanish High Court of June, 8, 2012, is the first case in which the highest court in Spain provides for a redress of the victims of a cartel of 1.1 million Euros. The sugar manufacturer Acor had appealed the judgment of the Valladolid Provincial Court of October, 9, 2009, (...)

The EU General Court rules on multilateral interchange fees going through the intricacies of art. 101(3) (MasterCard)
Garrigues (Brussels)
Case T-111/08, Mastercard. A priceless Art. 101(3) assessment* A while ago we wrote a post on The Slow Death of Article 101(3) TFEU, where we said that in recent European Commission, practice, only once the challenged agreement was not deemed to be a restriction by “object”, and that only in (...)

The EU General Court fully upholds the Commission’s decision on multilateral interchange fees (MasterCard)
European Commission (Brussels)
European Courts: Judgment in MasterCard Case upholds Commission’s Decision* In its judgment of 24 May 2012 in case T-111/08, the General Court (the Court) fully upheld the Commission’s decision prohibiting MasterCard’s multilateral interchange fees (MIFs) that apply to cross-border transactions (...)

The Chinese Intermediate Court of Shanghai dismisses allegations of vertical price-fixing against medical equipments company (Johnson & Johnson)
Institute of American Studies (Beijing)
The Shanghai Court’s Position on Resale Price Maintenance in the J&J Vertical Price-Fixing Litigation* On 18 May 2012, the Shanghai No. 1 Intermediate People’s Court (‘Shanghai Court’) dismissed allegations that Johnson & Johnson Medical (China) Ltd. and its Shanghai branch had set a (...)

The Kansas Supreme Court condemns vertical price fixing agreements as per se illegal under the Kansas Restraint of Trade Act (O’Brien / Leegin Creative Leather Products)
Wolters Kluwer (Riverwoods)
Kansas Supreme Court Condemns Vertical Price Fixing Agreements as Per Se Illegal* Earlier this month, the Kansas Supreme Court ruled that the reasonableness of a vertical price fixing agreement is not to be considered when determining whether such an agreement violates the Kansas Restraint of (...)

The Kansas Supreme Court holds resale price maintenance is per se illegal under state law, but ruling subsequently overturned by state legislature (O’Brien / Leegin Creative Leather Products)
McDermott Will & Emery (Washington)
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McDermott Will & Emery (Washington)
The Kansas Supreme Court recently determined resale price maintenance is per se illegal under state law, becoming the latest state to reject the rule of reason standard mandated by the Supreme Court of the United States. The decision serves as a reminder that although a supplier’s pricing (...)

The Kansas Supreme Court holds that resale price maintenance, whether purely vertical or in a dual distribution setting, is per se illegal and rejects applicability of federal rule of reason analysis to claims brought under Kansas antitrust law (O’Brien / Leegin Creative Leather Products)
Crowell & Moring (Washington)
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Crowell & Moring (Irvine)
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Crowell & Moring (Washington)
UPDATE NOTE: On April 16, 2013, the Kansas legislature reversed the decision discussed below, and adopted a "reasonableness" standard for analyzing vertical price agreements. On May 4, 2012, Kansas joined the growing trend among states to limit the distribution flexibility that had been (...)

The Pakistani Competition Authority grants immunity upon a leniency application that facilitated the breakage of a cartel in the switchgear and distribution transformer market (Siemens)
Meta (Washington DC)
On April 3 the Competition Commission of Pakistan published a landmark decision imposing fines to members participating on a switchgear and transformer distribution market cartel, upon a leniency application submitted by Siemens. The decision represents a stepping-stone within the Pakistani (...)

The Belgian Supreme Court confirms Lower Courts’ rulings that appreciable affectation of competition and of trade between member states as required by Article 101 TFEU can be treated implicitly without failing to meet the required burden of proof (Fiat / Fortis Bank / TCI Auto Service)
McDermott Will & Emery (Brussels)
I. The facts On 15 September 1993, an exclusive motor vehicle distribution agreement was signed between Fiat Group Automobiles Belgium NV and TCI Auto Service NV, as a result of which TCI was granted the exclusive distributorship for a number of towns. Fortis Bank NV gave a first call guarantee (...)

The Indian Competition Authority fines 48 LPG cylinder manufacturers for engaging in bid-rigging in a tender for supply to oil corporation (IOCL)
Shardul Amarchand Mangaldas (New Delhi)
SUMMARY In tendering for the supply of LPG cylinders to the Indian Oil Corporation Ltd., 48 manufacturers were found by the CCI to have quoted identical or similar rates, and to have bid collectively for particular territories, after reaching an agreement between themselves. The CCI fined each (...)

The Moldovan Supreme Court of Justice quashes the Competition Authority’s infringement decision on concerted practices in the market for retail trade in oil derivatives for the lack of evidence and failure to specify the anti-competitive object (Parstar Petrol)
University of Macau - Faculty of Law (Macau)
On 15 February 2012 the Moldovan Supreme Court of Justice (CSJ) upheld the judgment issued by the Chisinau Court of Appeals (CAC) against the infringement decision of the Moldovan Competition Authority (ANPC) where the latter found the existence of the concerted practices on the market for (...)

The EU General Court confirms Commission’s decision holding a parent company jointly and severally liable for cartel behavior of its 50/50 owned joint venture (EI Dupont de Nemours)
White & Case (Brussels)
Holding parents liable for 50/50 joint ventures* On 2 February 2012, the EU’s General Court issued two important judgments concerning the issue of whether joint venture parents can be held liable for the cartel behaviour of their 50-50 joint venture. In T-77/08 (Dow Chemical v Commission) and (...)

The EU General Court issues a decision holding two joint venture parents liable for cartel behaviour of their 50/50 owned joint venture (Dow Chemical Company)
White & Case (Brussels)
Holding parents liable for 50/50 joint ventures* On 2 February 2012, the EU’s General Court issued two important judgments concerning the issue of whether joint venture parents can be held liable for the cartel behaviour of their 50-50 joint venture. In T-77/08 (Dow Chemical v Commission) and (...)

The Belgian Competition Council finds that a directive adopted by a professional association imposing a maximum fee for a specific service constitutes an infringement by object of the Belgian Competition Act, but decides not to impose a fine, merely a publication obligation (National Chamber of Bailiffs)
McDermott Will & Emery (Brussels)
BE31 [...] & Consorts/Chambre Nationale des Huissiers CONC-P/K-08/0016 Competition Council 08.12.11 I. The facts On 9 July 2008, a number of bailiffs lodged a complaint with the Belgian Competition Council claiming that the National Chamber of Bailiffs infringes Articles 2 and 3 of the (...)

The Bosnian Competition Authority finds no anticompetitive practices on the market for telecom interconnection services in the absence of the requisite anticompetitive object and effect (Crumb / Telekomunikacije Republike Srpske / Aneks)
University of Macau - Faculty of Law (Macau)
On 17 November 2011 the Competition Authority of Bosnia & Herzegovina (KV) closed its investigation into the alleged existence of anticompetitive agreement between the incumbent telecom operator Telekomunikacije Republike Srpske a.d.(Telekom RS) and an independent provider of fixed (...)

An Italian administrative court upholds the Competition Authority granting of full immunity and fine reductions to participants in the cosmetic and health care products cartel under the leniency programme (Reckitt Benckiser)
Giannino SI (Monserrato)
On appeal on the Cartel of large retailers for cosmetics and health care products decision of the Italian Competition Authority (ICA) the Regional Administrative Tribunal of Latium (Tar Latium) examined full immunity and fine reductions granted to a number of cartelists pursuant to the ICA (...)

The UK OFT issues a statement of objections confirming the immunity for a company in the airline fuel surcharges cartel case (Virgin)
University of East Anglia (Norwich)
Article published on Centre for Competition Policy blog. If Virgin Gets to Keep Its Immunity, Who is Responsible for the Collapse of the BA Trial?* This week the Office of Fair Trading announced that Virgin Atlantic would keep its immunity in the Passenger Fuel Surcharges cartel case. This (...)

The US Court of Appeals For the Seventh Circuit holds claims against a foreign price-fixing cartel in the potash industry to be either exempted under the Foreign Trade Antitrust Improvements Act or insufficient to state a cause of action under the Twombly/Iqbal pleading standards (Potash)
Cleveland University - Marshall School of Law
Potash Potash Potash!!!!! En Banc Review Is in the Hizz-ouse, Y’all!* Something striking occurred in the Seventh Circuit this year. In two different, massive antitrust class actions, in the space of about nine months, panels of that court applied the Twombly-Iqbal pleading formula to reach (...)

The EU General Court annuls fine imposed on parent company for its subsidiary’s participation in a beer industry cartel (Grolsch)
University of East Anglia (Norwich)
Grolsch Cartel Fine Annulment: Should Parent Companies Pay for the Anti-Competitive Conduct of a Subsidiary?* The General Court has annulled a €36.6m fine imposed on Grolsch for the price fixing of beer in Holland. In its decision, the European Commission had treated Koninklijke Grolsch NV and (...)

The EU General Court annuls fine in the Dutch beer cartel case, ruling that the evidence available to the EU Commission was not sufficient to establish the parent company’s liability for its subsidiary’s participation in the cartel (Grolsch)
Google (London)
The Dutch Beer Cases: The Value of Whistleblower Statements and the Cutback of Fines in Case of Unreasonably Long Commission Investigations* The General Court has rendered a series of judgments in the Dutch Beer Cartel case that involve a number of legal issues, including in Grolsch v. (...)

The US District Court for the Eastern District of Michigan explains its denial of motion to dismiss in Most Favored Nation -MFN- clauses decision in the health care industry (Blue Cross Blue Shield of Michigan)
Wolters Kluwer (Riverwoods)
Federal/State Antitrust Suit Against Blue Cross Blue Shield of Michigan Can Proceed* Last week, the federal district court in Detroit denied Blue Cross Blue Shield of Michigan’s motion to dismiss a federal/state antitrust action challenging the health insurer’s use of most favored nation (MFN) (...)

The Italian Competition Authority imposes fines totalling €5,5 m on firms producing and selling electro-medical equipment for diagnostic imaging representing 68% of the Italian sales (Alliance / Siemens / Philips / Toshiba / AGCM)
McDermott Will & Emery (Brussels)
ITALIAN COMPETITION AUTHORITY FINES SUPPLIERS OF MAGNETIC RESONANCE EQUIPMENT €5.5 MILLION * On 5 August 2011, the Italian Competition Authority levied fines totalling €5,538,750 on Alliance Medical S.r.l., Toshiba Medical Systems Italia S.r.l., Philips S.p.A. and Siemens S.p.A. Each firm (...)

The Moldovan Court of Appeals quashes the infringement decision of the Competition Authority on concerted practices in the market for retail trade in oil derivatives on the basis of lack of evidence (Petrom-Moldova)
University of Macau - Faculty of Law (Macau)
On 24 June 2011 the Chisinău Court of Appeals (the CAC) quashed the infringement decision of the Moldovan Competition Authority (ANPC) establishing the existence of concerted practices on the market for retail trade in oil derivatives. The CAC held that the ANPC failed to present sufficient (...)

The EU General Court partially annuls the Commission’s decision and reduces fines in a cartel case concerning the Dutch beer market (Netherlands Beer)
White & Case (Brussels)
,
White & Case (Brussels)
By its decision of 18 April 2007, the Commission imposed fines totalling approximately EUR 270 million on several Dutch brewers, including Heineken NV and its subsidiary Heineken Nederland BV, and Bavaria NV, for their participation in a cartel on the Dutch beer market between 27 February 1996 (...)

The EU General Court holds for the first time that the Commission erred in relying on the presumption that a parent company is liable for the anticompetitive conduct of its wholly-owned subsidiary (Hydrogen Peroxide)
White & Case (Brussels)
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White & Case (Brussels)
By its decision of 3 May 2006, the Commission imposed fines totalling over EUR 388 million on a number of companies for their participation in a cartel on the market for hydrogen peroxide and sodium perborate (bleaching agents) between 31 January 1994 and 31 December 2000. Among the companies (...)

The EU General Court reduces fines in Dutch beer cartel case finding that the Commission did not prove all infringements and that the duration of the procedure was excessive (Bavaria)
Google (London)
The Dutch Beer Cases: The Value of Whistleblower Statements and the Cutback of Fines in Case of Unreasonably Long Commission Investigations* The General Court has rendered a series of judgments in the Dutch Beer Cartel case that involve a number of legal issues, including in Grolsch v. (...)

The EU General Court reduces fines in the Dutch beer cartel case finding that the Commission did not prove all infringements had been committed and that the duration of the procedure was excessive (Heineken)
Google (London)
The Dutch Beer Cases: The Value of Whistleblower Statements and the Cutback of Fines in Case of Unreasonably Long Commission Investigations* The General Court has rendered a series of judgments in the Dutch Beer Cartel case that involve a number of legal issues, including in Grolsch v. (...)

A Moldovan Court of Appeals quashes the concerted practices decision of the Competition Authority for the failure to demonstrate the existence of a price coordination mechanism and the absence of alternative explanations (Lukoil Moldova)
University of Macau - Faculty of Law (Macau)
On 12 May 2011 the Chișinău Court of Appeals (the CAC) quashed the infringement decision of the Moldovan Competition Authority (ANPC) establishing the existence of the concerted practices on the market for retail trade in oil derivatives. The CAC held that the ANPC failed to prove that seven (...)

A Hungarian Court annuls the decision of the Competition Office having found guilty construction companies of bid rigging taking into account lack of proof of single and continuous infringement (Heves – Nógrád county tenders)
Philip Morris (Budapest)
I. Introduction On 19 April 2011, the Metropolitan Court of Budapest (the “Court”) annulled the decision of the Hungarian Competition Office (“HCO”) that EGÚT Egri Útépítő Zrt. (“EGÚT”) and Strabag Építő Zrt. (“Strabag”) were guilty of bid rigging and cancelled the fine that was imposed. The Court ordered the (...)

The US District Court of the Northern District of California rejects a breach of contract defence based on the illegality of the contract under the Robinson-Patman Act (Pet Food Express / Royal Canin)
Wolters Kluwer (Riverwoods)
Robinson-Patman Act Defense Rejected in Breach-of-Contract Case* Asserting a breach-of-contract defense based on the illegality of the contact under the Robinson-Patman Act appears to be as difficult as successfully alleging a Robinson-Patman Act claim itself. Earlier this week, the federal (...)

The EU General Court overturns EC’s fine decision becasuse of insufficient evidence to sustain the penalty in a copper fitting cartel (Aalberts Industries)
On March 24, 2011, the European General Court overturned more than €100 million in fines imposed against Aalberts Industries NV and its subsid- iaries for its alleged involvement in a copper fittings cartel, finding the EC’s evidence insufficient to sustain the penalty. The EC had fined 30 (...)

The UK Competition Appeal Tribunal narrows the scope of follow-on claims (Emerson Electric / Carbone)
Cleary Gottlieb Steen & Hamilton (London)
,
Cleary Gottlieb Steen & Hamilton (Brussels)
This article has been nominated for the 2012 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. On March 21, 2011, the U.K. Competition Appeal Tribunal (the “CAT”) struck out a follow-on claim for damages brought by Emerson Electric and others (“Emerson”) (...)

The EU Court of Justice issues a decision on a rubber chemicals cartel holding a parent company liable for the anticompetitive behaviour of its wholly-owned subsidiary and confirming that the presumption of parental liability is rebuttable (General Química)
Garrigues (Brussels)
The ECJ rules on parenthood (General Química v Commission)* The ECJ issued a Judgment yesterday in the General Química-Repsol case in which it partly upheld and partly annulled the General Court’s judgment dismissing the appeals against the Commission decision in the rubber chemicals cartel. In (...)

The UK Court of Appeal upholds a decision of the Competition Appeals Tribunal denying a claimant follow-on damages (Enron Coal Services / English Welsh & Scottish Railway)
Office of the Parliamentary Counsel (London)
I. Overview In January 2011, the UK Court of Appeal (the “Court”) dismissed an appeal against a ruling of the UK Competition Appeal Tribunal (the “Tribunal”) that Enron Coal Services Ltd (“Enron”) was not entitled to follow on damages against English Welsh and Scottish Railway Ltd (“EWS”). The Court (...)

The EU Commission issues new guidelines on horizontal co-operation agreements focusing on information exchanges under Art. 101 TFEU
European University Institute (Florence)
Information Exchange and Cartels – Dangerous Liaisons?* Are information exchanges really = cartels under EU competition law? The issue has triggered many discussions on the blog lately. I just thought I’d post my own ruminations on this. The Guidelines do not really say that information (...)

The EU Commission issues new guidelines on the applicability of Art. 101 TFEU to horizontal co-operation agreements equating information exchanges between competitors with cartels
Garrigues (Brussels)
Information exchange=cartel?* Many have praised the inclusion of some guidance on exchanges of information within the new EU Guidelines on horizontal agreements. Personally, I agree with those arguing that guidance from the Commission was necessary, and I acknowledge that there are some useful (...)

The Chinese State Administration for Industry and Commerce (SAIC) issues three substantive regulations on enforcement of the Anti- Monopoly Law
Linklaters (Beijing)
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Linklaters (Shanghai)
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Euclid Law (London)
On 7 January 2011, the State Administration for Industry and Commerce (“SAIC”) published three substantive Regulations on enforcement of the Anti- Monopoly Law (“AML”), regarding Monopolistic Agreements, Abuse of Dominance and Abuse of Administrative Powers. In May 2009 and May 2010, SAIC twice (...)

The US Court of Appeals for the 7th Circuit upholds the plausibility of a claim for alleged conspiracy in the telecommunications sector under the Twombly standard (Text messaging antitrust litigation)
Wolters Kluwer (Riverwoods)
Conspiracy to Fix Prices for Text Messaging Services Plausible* Antitrust plaintiffs asserting price fixing claims do not need a “smoking gun” to avoid dismissal of their complaint and proceed to discovery. Yesterday, the U.S. Court of Appeals in Chicago decided that consumers plausibly alleged (...)

The EU General Court confirms the €38 million fine imposed for breaking a seal affixed to an office of a company by the Commission during an inspection (E.ON Energie)
Vogel & Vogel (Paris)
On 15 December 2010, the General Court of the European Union (EGC) handed down a tough but very thoroughly argued decision on the infringement of breaking of an official seal. The European Commission had ordered an inspection of the premises of the company E.ON Energie AG in the context of an (...)

The EU General Court annuls a Commission’s decision limiting its discretion to reject complaints and addressing the issue of market definition in the luxury watches repair services and spare parts markets (CEAHR)
Garrigues (Brussels)
Wrapping up the week / Case T-427/08, CEAHR v Commission* Case T-427/08, CEAHR v Commission The complaint: The European Confederation for watch repairers associations lodged a complaint before the Commission alleging that watch manufacturers had engaged in agreements and/or concerted (...)

The Italian Court of First Instance confirms the Competition Authority’s decision in a price fixing case concerning the liquefied petroleum gas sector (Butanes / Eni / Liquigas)
Bonelli Erede (Rome)
In its judgment delivered on 13 December 2010, the Italian Court of First Instance ("Tar Lazio") confirmed the decision by which the Italian Competition Authority ("ICA") found the three main operators active in the LPG sector in Italy (i.e. Butangas, Eni and Liquigas) to have coordinated their (...)

The Bulgarian Commission for Protection of Competition closes a probe into alleged bid-rigging among suppliers of pharmaceuticals without establishing an infringement (Alta Pharmaceuticals, Roche)
Kinstellar (Sofia)
The Bulgarian Commission for Protection of Competition (the «CPC») closed an investigation into alleged bid-rigging practices among suppliers of pharmaceuticals absent collaborative evidence of price coordination and with further regard to the transparency-enhancing effects of the domestic (...)

The US Court of Appeals for the 11th Circuit affirms dismissal of price-fixing conspiracy claims in the mattress manufacturing industry for not meeting Twombly pleading requirements (Jacobs, Tempur-Pedic)
Wolters Kluwer (Riverwoods)
Consumers’ Price Fixing Claims Against Mattress Maker Did Not Meet Twombly Pleading Requirements* A decision from a divided U.S. Court of Appeals in Atlanta earlier this month continues the debate over the appropriate pleading standard for antitrust plaintiffs under Bell Atlantic Corp. v. (...)

A US federal district court denies dismissal of antitrust conspiracy claim in tomato products industry (The Morning Star Company / SK Foods)
Wolters Kluwer (Riverwoods)
Claim of Antitrust Conspiracy Among Tomato Processors Avoids Dismissal* The federal district court in Sacramento, California, has refused to dismiss an antitrust claim alleging that SK Foods L.P.—a now-defunct food products distributor—conspired with others to eliminate competition in the market (...)

The EU General Court rules on liability for Spanish raw tobacco cartel (Alliance One International)
Winston & Strawn (New York)
On October 27, 2010, the General Court rendered a decision in the appeal by Alliance One International (formerly Standard Commercial Corp. (“SCC”)), and its subsidiaries Standard Commercial Tobacco Co., Inc. (“SCTC”) and Trans-Continental Leaf Tobacco Corp. Ltd (“TCLT”) (together, the “Applicant (...)

The US DoJ challenges "most favoured nations" clauses in the healthcare sector by analyzing their anticompetitive effects under section 1 of the Sherman Act (Blue Cross Blue Shield of Michigan)
Richard Wolfram, Esq. (New York)
‘Most Favored Nations’ (MFN) Clauses under the Spotlight: U.S. v. Blue Cross Blue Shield of Michigan — When Might Otherwise Competitively Neutral or Procompetitive MFN Clauses Violate the Antitrust Laws?* On October 18, 2010, the U.S. Department of Justice and the State of Michigan sued Blue (...)

A US District Court rules against plaintiffs in the auto parts industry holding that they failed to prove specific facts under Robinson-Patman Act’s price discrimination provision (Coalition for a Level Playing Field, Autozone)
Scharf Banks Marmor (Chicago)
Is it Possible to Plead a Robinson-Patman Act Case at All?* The recent decision in Coalition for a Level Playing Field, LLC v. Autozone, Inc., 2010-2 Trade Cas. ¶ 77,182 (S.D.N.Y. Sept. 16, 2010) was a bit surprising to me. The essence of the case was that a group of smaller purchasers of (...)

The Dutch Trade and Industry Appeals Tribunal holds that undertakings participating in an exchange of information amounting to a concerted practice should not be required to adduce irrefutable evidence that such exchanges do not have any effect on their conduct on the market (KPN / Orange / Telfort / T-Mobile / Vodafone Libertel)
European Commission - DG COMP (Brussels)
,
European Court of Justice (Luxembourg)
The Dutch Trade and Industry Appeals Tribunal has held that by virtue of Article 6 of the ECHR, undertakings participating in an exchange of information amounting to a concerted practice should not be required to adduce irrefutable evidence that such exchange did not have any effect on their (...)

The Karlsruhe Higher Regional Court rules on key issues of private damages actions against hardcore cartels decides on the indirect customer’s right to claim and addresses the challenging task of quantifying antitrust damages (Carbonless paper cartel)
Eberhard Karls University of Tübingen
,
Gleiss Lutz (Stuttgart)
Introduction Private enforcement in hardcore-cartels cases is getting in motion. In Germany, within less than one year two actions for damages against participants in hardcore-cartels were successful. After the decision of the Berlin Higher Regional Court in the “Berliner Transportbeton”-case (...)

A US District Court finds that the plaintiffs have failed to nudge their antitrust claims against building products distributor and grants order to dismiss the action (Bailey Lumber / BlueLinx)
Sheppard Mullin (Los Angeles)
Cross-Market Claims Flunk Twombly* In two companion opinions, Magistrate Judge Louis Guirola, Jr. of the Southern District of Mississippi granted motions to dismiss and greatly limited the scope of the claims asserted against several defendants in "opt out" actions following from the In re OSB (...)

The US Court of Appeals for the 2nd Circuit reverses a District Court decision and rules that the plaintiff satisfied the Twombly standard in a conspiracy case alleging parallel conduct (Starr / Sony BMG)
WilmerHale (Washington)
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WilmerHale
In a notable recent decision, Starr v. Sony BMG Entertainment, 592 F.3d 314 (2d Cir. 2010), the United States Court of Appeals for the Second Circuit addressed the pleading standard a plaintiff must satisfy to survive a motion to dismiss an antitrust conspiracy claim under § 1 of the Sherman Act (...)

The Romanian Competition Authority imposes an 8% fine on an association of undertakings for price fixing and refers them for the first time to criminal investigation bodies (Association of the Depositories of Cereals)
Nestor Nestor Diculescu Kingston Petersen (Bucharest)
Price fixing by associations of undertakings is no novelty in the competition world. Neither are heavy fines, although it is not often that a competition authority reaches an 8% fine for a short term infringement (be it price fixing), and without application of any aggravating circumstances. (...)

The Regional Administrative Tribunal for Latium upholds the Competition Authority which fined 26 pasta manufacturers and two trade associations for having cartelized the market for durum semolina pasta (Pricing of Pasta)
Giannino SI (Monserrato)
By a judgment of December 2009 the Regional Administrative Tribunal for Latium decided on the appeal against the decision of the Italian Competition Authority (ICA) in the Pricing of Pasta case. The ICA had fined 26 pasta manufacturers and two trade association for having cartelized the market (...)

The Polish Appeal Court annuls the judgment of the Court of the Competition and Consumer Protection pointing out that joint buying groups require a more in-depth competition analysis even in cases of resale price maintenance (PSB / Gamrat)
Greenberg Traurig Grzesiak (Warsaw)
The Polish Appeal Court has quashed a Competition Court decision on procedural grounds pointing out that joint buying groups require a more in-depth competition analysis even in cases of resale price maintenance. On 10th November 2009, the Appeal Court issued a long awaited judgment concerning (...)

The U.S. District Court of the Northern District of California finds sufficient ground for a claim of alleged illegal secret rebates, kickbacks and commissions in the market for the sale of title insurance, but rejects a claim of collusive conduct (California Title Insurance)
Sheppard Mullin (Los Angeles)
Strike Three: Plaintiffs Again Fail to Allege Facts of Collusion in Oligopoly Market* Rather than being "plus factors," allegations of interdependent industry structure simply demonstrate that the challenged conduct of defendant title insurers was as consistent with competition as with (...)

The EU Court of Justice reverses the Commission decision regarding the legality of dual pricing arrangments between leading pharmaceutical undertaking and Spanish wholesalers (GlaxoSmithKline)
Morgan Lewis (London)
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Corrs Chambers Westgarth (Sydney)
On 6 October 2009, the European Court of Justice (ECJ) issued its judgment in the long-running wrangle regarding the legality of GlaxoSmithKline’s (GSK) dual pricing arrangements with Spanish pharmaceutical wholesalers. As a result of the judgment, the European Commission (Commission) will have (...)

The EU Court of Justice confirms that the Commission must assess whether an agreement to limit parallel trade in medicines has pro-competitive benefits (GlaxoSmithKline)
Linklaters (Paris)
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Monckton Chambers (London)
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On 6 October, the European Court of Justice (‘ECJ’) issued another “score draw” judgment in the long-running battle of R&D-based pharmaceutical companies to limit parallel trade in medicines across the EU. While the ECJ required the European Commission to conduct an in-depth examination of (...)

The Berlin Higher Regional Court rules on key issues of standing and standard of proof in cartel damages suits (Transportbeton Berlin)
Eberhard Karls University of Tübingen
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Gleiss Lutz (Stuttgart)
I. Introduction In its judgment on the first of October 2009 the Berlin Higher Regional Court has decided on important and disputed questions concerning the private enforcement of cartel damage claims under the German Act against restraints of Competition (“ARC”). Several statements in the (...)

The French Supreme Court recalls the conditions for the demonstration of collective dominance (Lafarge Ciments / Vicat)
Hewlett Packard (Boulogne-Billancourt)
On 9 July 2009, the French Supreme Court (the "Supreme Court") partially quashed a decision of the Paris Court of Appeal ruling that two cement operators (Lafarge and Vicat) had abused their collective dominant position on the market for the supply and distribution of cement in Corsica. This (...)

The Belgian Supreme Court makes clear that a judge cannot invoke Art. 81.3 EC on its motion if it was not invoked by one of the parties to the case (Brouwerij Haacht)
VMMa (Gent)
Facts The case concerns an appeal to the Belgian Supreme Court against a decision of the Brussels Court of Appeal. It is important to note that the Belgian Supreme Court does not assess the facts of a case, it can only decide on the legality of a judgment. The case concerns an exclusive (...)

The UK High Court denies representative action statute for antitrust price-fixing claims in the air freight services market (Emerald / British Airways)
Skadden, Arps, Slate, Meagher & Flom (Washington)
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Skadden, Arps, Slate, Meagher & Flom (London)
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Dentons (Brussels)
On April 8, 2009, the English High Court of Justice, Chancery Division, granted British Airways’ request for an order striking two Plaintiffs’ representative claims. Though still subject to appeal, this decision potentially represents a significant obstacle to efforts underway to apply historical (...)

The Paris Court of Appeal confirms the fines imposed in a collective boycotting case and its strict case law on standard of proof (Defibrillators)
Hewlett Packard (Boulogne-Billancourt)
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Ginestié Magellan Paley-Vincent (Paris)
On 8 April 2009, the Paris Court of Appeal (the "Court") confirmed the decision of the French Competition Council (the "Authority") dated 19 December 2007 to fine five of the world’s leading implantable heart defibrillator manufacturers (Biotronik, Ela Medical, Guidant, Medtronic and Saint Jude (...)

The EU Court of Justice Advocate General Kokott gives opinion on standard of proof with regard to anti-competitive concerted practices (T-Mobile Netherlands)
Van Bael & Bellis (Brussels)
On 19 February 2009, Advocate General Kokott delivered her opinion in relation to a preliminary reference from a Dutch court regarding the requirements that must be satisfied to establish an anti-competitive concerted practice for the purposes of Article 81(1) EC. The case before the Dutch (...)

A Belgian Court of appeal infers a cartel from a similar approach adopted by several medical oxygen providers boycotting a competitor (AGIM / Oxycure)
Arendt & Medernach (Luxembourg)
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NautaDutilh (Luxembourg)
Facts of the case 1. Oxycure markets an oxygen concentrator, which generates medical oxygen on the spot and hence constitutes an innovative and a more efficient alternative to medical oxygen distributed in bottles. As the oxygen concentrator works on electricity, Oxycure’s clients need reserve (...)

The German Federal Cartel Office imposes € 165 M fines against manufacturers of clay roof tiles for price fixing and applies leniency (Creaton, Pfleiderer Dachziegel, Koramic Dachprodukte, Monier, Erlus Gebr. Laumans)
Mutze Korsch Rechtsanwaltsgesellschaft (Düsseldorf)
Background The building materials sector has been often involved in cartel investigations over the last decades. The German Competition Authority (Federal Cartel Office, "FCO") is currently investigating more than one case where companies within this sector are alleged to have infringed (...)

The Dutch Competition Authority decides not to impose fines on ten producers of fluid-concrete as the participation of all undertakings in the infringement was not established and as result no appreciable restriction of competition could be determined (Betonmortelfabriek Utrecht)
Cuatrecasas
Introduction On January 11, 2006 the Dutch Competition Authority (NMa) imposed fines on ten Dutch producers of fluid-concrete for a total amount of € 6 million for an infringement of Article 6 of the Dutch Competition Act. According to the NMa the undertakings exchanged information about price (...)

The UK High Court rejects counterclaims alleging collusion by bookmakers (Turf TV)
Stevens & Bolton (London)
Background Licensed betting offices (“LBOs”) have, since 1987, had the right to show live racing coverage. Four of the largest bookmakers formed Satellite Information Services (“SIS”), which, until 2007, acted as the sole provider of live racing coverage. In 2004, various racecourses in Great (...)

The Hungarian Court of Appeal upholds the Competition Authority decision and also accepts the approach of the General Court regarding the reduction of the fines (GIS cartel)
DLA Piper (Budapest)
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DLA Piper (Budapest)
The Budapest Court of Appeal upheld, in its second instance judgment, the verdict of the Metropolitan Court of Budapest in the "GIS cartel" case: the judgment confirmed the existence of the infringement, whilst it accepted the lower court’s decision to decrease the fines imposed on the (...)

An Italian Administrative Court confirms that a cartel took place in hospital supplies but slashes down fines (Bristol Myers Squibb)
Latham & Watkins (Brussels)
Introduction The Regional Administrative Tribunal of Latium, Rome Section (“TAR Latium”) by a judgment published on 6 June 2008 has upheld a decision of the Italian Antitrust Authority (“IAA”) finding that four companies had rigged supplies of ostomy products to the Italian National Health System (...)

The Lisbon Court of Commerce annuls Competition Authority’s finding of a price fixing and market sharing cartel in the market for fire-fighting helicopters (Aeronorte / Helisul)
PLMJ (Lisbon)
I. The facts and the administrative proceedings In October 2007, the Portuguese Competition Authority (the “PCA”) issued a decision finding a price-fixing and market-sharing cartel between Aeronorte and Helisul in their reply to the public tender for helicopters to fight forest fires, and (...)

The Hungarian Competition Authority accepts commitments to modify the membership fees of the Budapest Stock Exchange and terminates a cartel investigation against trading companies (Budapesti Értéktõzsde)
Baker McKenzie (Budapest)
The background of the investigation The Competition Office initiated an investigation against the Budapest Stock Exchange ("BSE") and 11 trading companies, as it suspected an illegal horizontal coordination among the trading members of the BSE concerning (i) the amendment of BSE’s membership (...)

The Lisbon Commerce Court annuls the Competition Authority’s decision in the alleged ‘helicopter cartel’ case (Aeronorte / Helisul)
Morais Leitão, Galvão Teles, Soares da Silva (Porto)
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Morais Leitão, Galvão Teles, Soares da Silva (Lisbon)
In May 2008 the Lisbon Commerce Court issued a ruling (case 48/08.7TYLSB) that quashed the Portuguese Competition Authority’s decision of 2007 (case PRC 20/05) that found out that two companies (Aeronorte and Helisul) had engaged in a bid-rigging cartel for the provision of helicopter services (...)

The Hungarian Competition Authority holds that a selective resale price fixing is not a hardcore restriction in relation to the distribution of energy drinks (Büki Ásványvíz- és Üditõital Kereskedelmi)
Morley Allen & Overy Iroda (Budapest)
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Bilfinger Industrial Services (Budapest)
Background In its decision of 14 May 2008 (GVH Decision), the Competition Council of the Hungarian Competition Office (GVH) terminated the proceedings against Büki Ásványvíz- és Üditõital Kereskedelmi Kft. (Büki Ásványvíz), with respect to certain restraints in vertical agreements concluded by the (...)

The Dutch Supreme Court considers burden of proof in trade mark exhaustion case (Joop! / Jil Sander / Davidoff / Lancaster)
Van Bael & Bellis (Brussels)
On 18 April 2008, the Dutch Supreme Court (Hoge Raad) handed down a judgment relating to the burden of proof in a trade mark exhaustion case. The judgment refines earlier case-law on the matter. In the case at hand, various luxury cosmetic brands, including Joop!, Jil Sander and Davidoff, had (...)

The UK Competition Authority announces financial incentives for information regarding cartel activity
Linklaters (London)
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Linklaters (London)
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Linklaters (London)
The OFT published details today of ground-breaking plans to offer rewards of up to £100,000 for the provision of information on cartel activity. The OFT is one of the first anti-trust regulators to introduce such reward payments, and the move marks a further escalation of the OFT’s (...)

The Dutch Trade and Industry Appeals Tribunal makes a reference for a preliminary ruling to the ECJ concerning the application of Art. 81.1 EC to concerted practice between mobile phone operators (KPN Mobile)
European Commission - DG COMP (Brussels)
,
European Court of Justice (Luxembourg)
In December 2002, the Dutch Competition Authority (hereafter the ‘NMa’) imposed fines upon five Dutch mobile phone companies for breach of Article 6 of the Dutch Competition Act (a provision equivalent to Article 81 (1) EC). The NMa found that those mobile phone operators exchanged confidential (...)

The French Competition Authority applies for the second time leniency and highlights discrepancy with EC competition law on concerted practices’ burden of proof (Removals cartel)
Lenoir Avocats (Paris)
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Eversheds Sutherland (Paris)
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Orrick, Herrington & Sutcliffe (Paris)
Summary of the decision Following an investigation with dawn raids and seizures initiated further to a leniency application, the French Competition Council has sanctioned a horizontal cartel between twelve companies in the sector of national and international removals to and from France, (...)

The French Commercial Supreme Court partly annuls the Paris Court of Appeal’s judgment on illicit exchange of sensitive information in the mobile telephony cartel and strengthens the standard of proof (Bouygues Telecom / SFR / Orange)
Lenoir Avocats (Paris)
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Eversheds Sutherland (Paris)
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Johnson & Johnson (Issy-les-Moulineaux)
Proceedings In its decision of November 25, 2005, the French Competition Council imposed record fines - up to a global amount of € 534 million - on the three main mobile phone operators in France (namely Bouygues Telecom, SFR and Orange France) for cartel practices infringing of Articles L. (...)

The US Supreme Court reverses the 96 year old-doctrine governing resale price maintenance agreements as per se illegal replacing it with the rule of reason standard (Leegin Creative)
Hahn Loeser & Parks (Columbus)
Introduction In the summer of 2007, the United States Supreme Court overruled a ninety-six year old precedent when it overruled the historical decision of Dr. Miles in Leegin Creative Leather Products, Inc. v. PSKS, Inc.. Relying on economists’ views, the majority took a drastic measure and (...)

The US Supreme Court overrules prohibition against vertical agreements between manufacturers and their dealers setting minimum resale prices as a per se violation (Leegin Creative)
Kozyak Tropin and Throckmorton Law Firm
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Holland & Knight (Miami)
Vertical Price Agreements in the Wake of Leegin v. PSKS: Where Do We Stand Now?* I. INTRODUCTORY REMARKS For nearly a century, agreements between retailers and suppliers stipulating a minimum retail price were considered per se violations of the Sherman Act. Resale price maintenance (“RPM”) (...)

The US Supreme Court sets aside Dr. Miles rule on resale price maintenance agreements as per se illegal replacing it with the rule of reason standard (Leegin Creative)
Cause of Action Institute (Arlington)
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Porter Wright Morris & Arthur (Washington)
Dr. Miles: Will the Supreme Court Find a Cure?* On December 7, 2006, the U.S. Supreme Court agreed to hear Leegin Creative Leather Products, Inc. v. PSKS, Inc.,which presents the Court with an opportunity to address the per se minimum resale price rule established almost a century ago in Dr. (...)

The US Supreme Court redefines notice pleading and raises the bar for plaintiffs in private antitrust conspiracy claims (Bell Atlantic / Twombly)
St. John’s University School of Law
Twombly: The Demise of Notice Pleading, the Triumph of Milton Handler and the Uncertain Future of Antitrust Enforcement* The Supreme Court’s decision in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) is a watershed ruling whose impact on private litigation, especially antitrust (...)

The US Supreme Court affirms the necessity of pleading elements in private antitrust conspiracy claims (Bell Atlantic / Twombly)
University of Indiana
Pleading Consumer Antitrust Claims* The U.S. has long followed a system of private enforcement of law meant to redress public harm. In the law of antitrust, from the very beginning U.S. law provided a claim to plaintiffs who could show harm flowing from the violation. Convincing private (...)

The US Supreme Court defines minimum pleading standard in antitrust class action (Bell Atlantic / Twombly)
Skadden, Arps, Slate, Meagher & Flom (Washington)
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Skadden, Arps, Slate, Meagher & Flom (Washington)
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Skadden, Arps, Slate, Meagher & Flom (New York)
In a 7-2 decision on May 21, 2007, the Supreme Court held that a complaint alleging antitrust conspiracy based on parallel conduct alone fails to state a claim under Federal Rule of Civil Procedure 12(b)(6). Bell Atlantic Corp. v. Twombly, No. 05-1126. Further, the Court held that a bare (...)

The US Supreme Court holds that an allegation of parallel conduct and a bare assertion of an agreement does not suffice to state a claim of conspiracy under the Sherman Act (Bell Atlantic / Twombly)
Paul Hastings (New York)
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Paul Hastings (New York)
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Seeger Weiss (New York)
INTRODUCTION On May 21, 2007, the United States Supreme Court issued an important decision pertaining to the pleading standards in an antitrust action under Section 1 of the Sherman Act, 15 U.S.C. § 1. In Bell Atlantic Corp. v. Twombly, No. 05‐1126, the Supreme Court (...)

The Hungarian Supreme Court confirms the NCA’s decision having imposed a € 1.1 M fine for price fixing on the basis of Art. 81 EC to major multiplex movie theatres (Budapest Film)
Hogan Lovells (Budapest)
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DIGI (Budapest)
The Hungarian Competition Authority (“HCA”) established in its decision of 17 November 2003 that certain major Hungarian multiplex movie theatres (Budapest Film, Intercom, Palace Cinemas and UCICE) pursued concerted practices in 2002 by enacting similar significant price increases connected with (...)

The Frankfurt Higher Regional Court decides on the relationship between trademark and title protection law on the one hand and competition law on the other hand (Harry Potter)
Gleiss Lutz (Munich)
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Milbank (Munich)
On 11 April 2007, the German Higher Regional Court of Frankfurt issued a decision on the relationship between copyright, trademark and title protection law on the one hand and competition law on the other hand. The question at stake was whether restrictive clauses concerning the distribution of (...)

The Dutch Court holds that a 5-year non-compete clause is disproportional in view of its goal and constitutes a restriction by object (Heijmans beton / Nederveen)
European Commission - DG COMP (Brussels)
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European Court of Justice (Luxembourg)
In this case, the Court of First Instance of ‘s-Hertogenbosch (Rechtbank ‘s-Hertogenbosch) holds that a non-compete clause of 5 years is disproportional in view of its goal and constitutes a restriction by object. However, the Court did not have enough information in order to determine whether (...)

The Romanian High Court quashes a NCA’s decision having imposed a 27 M euro fine for price fixing practices for insufficient proof on the basis, inter alia, of ECJ case law
Clifford Chance Badea (Bucharest)
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Dechert (Paris)
The Romanian High Court of Cassation and Justice has recently made an application of the principles governing the burden and the level of proof in antitrust cases, overturning decision n° 94/2005 of the Romanian Competition Council as regards the sanction inflicted to one of the undertakings (...)

The Romanian Supreme Court overturns the Competition’s Authority decision having fined one participant to a cartel for lack of sufficient proofs (Cement cartel)
European Security Transport Association (ESTA)
Competition Council (Consiliul Concurentei), 26 May 2005, Decision n° 94 relating to the sanctioning of Lafarge Romcim SA, Holcim Romania SA and Carpatcement Holding SA for the infringement of Article 5(1) (a) of the Competition Law n° 21/1996. By its Decision n° 1358 of 5 March 2007, the Romanian (...)

The EU Court of Justice upholds the judgment of the General Court penalising the cartel of steel tubes producers known as the ’Europe-Japan Club’ (Dalmine / Sumitomo / Nippon Steel / Salzgitter)
European Court of Justice (Luxembourg)
THE COURT UPHOLDS THE JUDGMENT OF THE COURT OF FIRST INSTANCE PENALISING A CARTEL OF STEEL TUBES PRODUCERS* The producers did not prove that the Court of First Instance made errors of law in its judgment By decision of 8 December 1999 , the European Commission ordered eight undertakings (four (...)

The EU Commission fines copper fittings producers €314.76 million for price-fixing cartel (Aalberts / Delta / Advanced Fluid Connections / Legris)
European Commission - DG COMP (Brussels)
Competition: Commission fines copper fittings producers €314.76 million for price fixing cartel* The European Commission has fined 30 companies a total of €314.76 million for participating in a copper fittings cartel, in violation of the EC Treaty’s ban on restrictive business practices (Article (...)

The Lithuanian Supreme Administrative Court confirms the NCA’s decision sanctioning taxi companies for price fixing through concerted practice (Martono taksi)
ESG Legal (Vilnius)
In a decision dated 11 May 2006, the Lithuanian Supreme Administrative Court (LSAC) upheld the decision of the Vilnius District Administrative Court (VDAC) from 19 September 2006 with some corrections in the calculation of fines and confirmed the original decision of Lithuanian Competition (...)

The French National Competition Authority fines nearly 80 companies and trade associations for horizontal and vertical agreements in the sector of construction products and clarifies the standard of proof applicable to anticompetitive meetings
Maulin Avocats (Paris)
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Herbert Smith Freehills (Paris)
In a decision of 9 March 2006, the French Competition Council (the "Council") fined nearly 80 companies and trade associations for unlawful practices implemented between 1993 and 1998 in the sector of heating, sanitation, plumbing and air-conditioning products. These practices included (i) (...)

The US Supreme Court reaffirms market power requirement to determine a tying arrangement as per se unlawful (Independent Ink)
BakerHostetler (Washington)
Are tying arrangements illegal per se?* In the deep, dark antitrust dungeon reserved for per se offenses, only one species of conduct remains that does not involve a horizontal conspiracy: tying arrangements. Minimum resale pricing agreements tunneled their way out thanks to the Supreme (...)

The US Supreme Court reverses a lower court’s decision clarifying competitive injury and secondary price line discrimination under the Robinson-Patman Act (Volvo Trucks / Reeder-Simco)
Mayer Brown (New York)
Competitive Injury and Price Discrimination in the United States* In Volvo Trucks North America, Inc. v. Reeder-Simco GMC, Inc., the Supreme Court provided guidance on whether, under the Robinson-Patman Act, a manufacturer may offer one dealer better prices than another dealer when those (...)

The US Supreme Court overturns a Lower Court decision for the plaintiff but reiterates the traditional method of proving secondary line price injuries under the Robinson-Patman Act (Volvo Trucks / Reeder-Simco)
Seattle University
The Robinson-Patman Act and Consumer Welfare: Has Volvo Reconciled them?* The Robinson-Patman Act is the black sheep of antitrust. Unlike the other antitrust laws, its fundamental goal is not to preserve competition in order to benefit consumers, but to limit competitive rivalry in order to (...)

The German Federal Court of Justice rules on the standard of proof for the existence of a revenue surplus from a cartel agreement (Transportbeton Berlin)
Helmut Schmidt University of the Armed Forces (Hamburg)
On June 28, 2005, the German Federal Court of Justice (FCJ) clarified the standard of proof in cases in which the state seeks to disgorge the revenue surplus (“additional proceeds”) from a cartel. I. Facts of the case Between 1995 and 1998, nearly all producers of ready-mixed concrete in the (...)

The German Mannheim Regional Court decides on the right to claim against a vertically integrated cartelist and the standard of proof for antitrust damages in a follow on-suit (Carbonless paper cartel)
Eberhard Karls University of Tübingen
The Regional Court Mannheim decided in its judgment of 29 April 2005 on the right to claim against a vertically integrated cartelist and the standard of proof for antitrust damages in a follow on-suit after a final decision of the EC Commission (Carbonless paper) . Background and Context of (...)

The US Supreme Court restricts the applicability of US antitrust laws with regard to injuries suffered abroad holding that foreign nations can preserve competition without American interference (Hoffman-La Roche / Empagran)
IRS Office of Chief Counsel
F. Hoffman-La Roche Ltd. v. Empagran S.A.: The Supreme Court Trusts That Foreign Nations Can Preserve Competition Without American Interference* In F. Hoffman-La Roche Ltd. v. Empagran S.A., the United States Supreme Court held that United States courts do not have jurisdiction over claims of (...)

The US Supreme Court prevents foreign plaintiffs from bringing price-fixing cartel claims (Hoffman-LaRoche / Empagran)
St. John’s University School of Law
The FTAIA and Empagran: What Next?* In F. Hoffman LaRoche Ltd. v. Empagran S.A., 542 US 155 (2004), the Supreme Court limited access to American courts by foreign plaintiffs suing under the Sherman Act based on foreign transactions. Jurisdiction over foreign antitrust claims is governed by (...)

The EU Court of First Instance states that the application for interim measures must be assessed in order to prevent serious and irreparable damage to the party applying for those measures (Institut des mandataires agréés)
European Court of Justice (Luxembourg)
Case T-144/99 R Institute of Professional Representatives before the European Patent Office v Commission of the European Communities* The urgency of an application for interim measures must be assessed in relation to the necessity for an interim order to prevent serious and irreparable (...)

The EU Court of Justice clarifies the criteria for determining the existence of a concerted practice (John Deere)
European Court of Justice (Luxembourg)
Case C-7/95 P John Deere Ltd v Commission of the European Communities* 1. It follows from Article 168a of the Treaty, Article 51 of the Statute of the Court of Justice and Article 112(1)(c) of the Rules of Procedure that an appeal must indicate precisely the contested elements of the (...)

The EU Court of First Instance holds that an undertaking not abiding by the outcome of anticompetitive meetings does not relieve it of full responsibility for its participation in the cartel unless it has publicly distanced itself from it (BPB de Eendracht)
European Court of Justice (Luxembourg)
Case T-311/94 BPB de Eendracht NV, formerly Kartonfabriek de Eendracht NV ν Commission of the European Communities* 1. The statement of objections, the purpose of which is to give the undertakings under investigation in application of the competition rules all the information necessary to (...)

The US Court of Appeals for the Tenth Circuit applies a “quick look” rule of reason analysis and ultimately rejects an association-wide salary cap imposed on a position within each member organization in the college basketball industry (Law / NCAA)
Akin Gump Strauss Hauer & Feld (Dallas)
The U.S. Tenth Circuit struck down an NCAA-wide salary cap imposed on the earnings of “restricted-earnings” coaches as an unreasonable restraint of trade. Instead of applying per se illegality to a price-fixing agreement, the Court determined that a “quick look” rule of reason was more appropriate (...)

The EU Court of Justice states that an undertaking that entered into anticompetitive agreements cannot be exempted because of a crisis in the industry (Baustahlgewebe)
European Court of Justice (Luxembourg)
Case T-145/89 Baustahlgewebe GmbH v Commission of the European Communities* 1. The legality of a Commission decision taken against an undertaking in a competition case cannot be affected by the Commission’s refusal to grant further access to the file or the failure to forward certain (...)

The EU Court of Justice reviews the conditions for granting an exemption in an operation involving a net price system in the retail of books (Publishers Association)
European Court of Justice (Luxembourg)
Case C-360/92 P Publishers Association v Commission of the European Communities* 1. Where two Member States form a single language area, the court which has to review the lawfulness of the Commission’s refusal to grant an exemption under Article 85(3) of the Treaty for a net price system for (...)

The EU Court of Justice states that the Commission is not required to set out in its decision exhaustively all the evidence available, it is sufficient if it refers to the conclusive evidence (Petrofina)
European Court of Justice (Luxembourg)
Case T-2/89 Petrofina SA v Commission of the European Communities* 1. The decision addressed by the Commission to undertakings or associations of undertakings pursuant to Article 85(1) of the Treaty may not contain new objections in addition to those contained in the statement of objections (...)

The EU Court of Justice upholds the Commission’s decision finding that unilateral measures can prove anticompetitive agreement in the absence of written records (Sandoz)
European Court of Justice (Luxembourg)
Case C-277/87 Sandoz prodotti farmaceutici SpA v Commission of the European Communities* 1. The systematic dispatching by a supplier to his customers of invoices bearing the words ’Export prohibited’ constitutes an agreement prohibited by Article 85(1) of the Treaty, and not unilateral conduct, (...)

Unilateral Practices

The EU General Court annuls the Commission’s decision that a semiconductor chip manufacturer had abused its dominant position and the Commission’s imposition of a €1.06 billion fine (Intel)
Skadden, Arps, Slate, Meagher & Flom (Brussels)
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Skadden, Arps, Slate, Meagher & Flom (Brussels)
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Skadden, Arps, Slate, Meagher & Flom (Brussels)
On January 26, 2022, the EU General Court (the Court) annulled the European Commission’s (the Commission) decision that Intel had abused its dominant position regarding its x86 central processing unit (CPU) computer chips and the imposition of a €1.06 billion fine. The judgment demonstrates that (...)

The EU General Court partially annuls the Commission’s decision to impose a €1.06 billion fine on a semiconductor chip manufacturer for its abuse of dominant position (Intel)
Ashurst (London)
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Ashurst (London)
On 26 January 2022, the General Court ("GC") partially annulled the European Commission’s decision to impose a EUR 1.06 billion fine on Intel for abusing its dominant position ("Decision"). The fine was annulled in full. Applying the principles outlined in the European Court of Justice’s ("ECJ") (...)

The EU General Court annuls in part the Commission’s decision imposing a fine of €1.06 billion on the world’s largest semiconductor chip manufacturer (Intel)
General Court of the European Union (Luxembourg)
The General Court annuls in part the Commission decision imposing a fine of € 1.06 billion on Intel* The Commission’s analysis is incomplete and does not make it possible to establish to the requisite legal standard that the rebates at issue were capable of having, or likely to have, (...)

The EU Court of Justice annuls a Commission’s landmark decision fining a semiconductor company €1.06 billion for abuse of dominant position (Intel)
Jones Day (Brussels)
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Jones Day (Frankfurt)
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Jones Day (Brussels)
The EU General Court ("GC") annulled the European Commission’s €1.06 billion antitrust fine imposed on Intel in 2009 for allegedly abusing its dominant position in x86 Central Processing Units ("CPUs") by offering loyalty rebates to customers, excluding competitors such as AMD. The GC held that (...)

The EU Court of Justice AG Rantos suggests to the Court criteria to qualify abusive exploitation for a dominant position involving exclusionary practices (Servizio Elettrico Nazionale)
ACTECON (Istanbul)
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ACTECON (Istanbul)
Introduction: In recent weeks, highly praised opinion ("Opinion”) of the Advocate General Rantos, which was originally published in French, is released in English. In this article, we summarized the opinion of the Advocate General in four short sections and, supplemented each section with the (...)

The US District Court for the District of Columbia grants motions to dismiss two parallel antitrust complaints filed by the FTC and a group of State AGs against a social media company for monopolization, with the FTC being allowed to file an amended complaint in 30 days (Facebook)
Skadden, Arps, Slate, Meagher & Flom (Washington)
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Skadden, Arps, Slate, Meagher & Flom (New York)
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Skadden, Arps, Slate, Meagher & Flom (New York)
On June 28, 2021, Judge James E. Boasberg of the U.S. District Court for the District of Columbia granted Facebook’s motions to dismiss two parallel antitrust complaints filed by the Federal Trade Commission (FTC) and a group of state enforcers. The complaints accused Facebook of illegally (...)

The French Competition Authority rejects a TV broadcaster’s complaint against the national football league’s awarding of broadcasting rights due to insufficient evidence (Canal Plus / Ligue de Football Professionnel)
French Competition Authority (Paris)
Reawarding of the football Ligue 1’s TV rights: The Autorité de la concurrence rejects Canal + Group’s complaint against the LFP, for lack of sufficient evidence* Background On 29 January 2021, Canal Plus Group ("GCP") referred practices allegedly implemented by the Ligue de Football (...)

The Dutch Trade and Industry Appeals Tribunal upholds the annulment of the nearly €41 million abuse of dominance fine imposed by the Competition Authority against a railway company (Nederlandse Spoorwegen)
KPN (Amsterdam)
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Bird & Bird (The Hague)
On 1 June 2021 the Dutch Trade and Industry Appeals Tribunal (“CBb”), which is the highest administrative court in the Netherlands, upheld the annulment of the nearly € 41 million abuse of dominance fine imposed by the Authority for Consumers and Markets (“ACM”, the Dutch competition authority) on (...)

The Indian Competition Authority dismisses antitrust complaint against a paint manufacturer because simply filing a criminal complaint against its competitor is not considered abuse of dominance (Asian Paints)
Lakshmikumaran & Sridharan (New Delhi)
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Lakshmikumaran & Sridharan (New Delhi)
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Vahura (New Delhi)
KEY POINTS Filing a criminal complaint against another enterprise in the same sector cannot be said to have been done with a view to oust competition from the relevant market in the absence of any additional evidence to indicate contraventions of Section 3 and/or 4 of the Act. BRIEF FACTS (...)

The French Competition Authority rejects a referral filed by a national karaoke studio for lack of evidence (Singing Studio / Karafun)
French Competition Authority (Paris)
The Autorité de la concurrence rejects the referral filed by Singing Studio in the karaoke sector for lack of evidence* Singing Studio’s complaint Singing Studio, which operates two establishments specialising in karaoke in Lille and Paris, has referred practices implemented by the Karafun (...)

The Australian Government decides that the shipping channel service at a bottleneck port infrastructure will remain unregulated (Port of Newcastle)
Herbert Smith Freehills (Sydney)
In a decision that will be welcomed by many of Australia’s port operators, for the second time in less than two years, the Federal Treasurer has decided that the shipping channel service at the Port of Newcastle should not be regulated. The Treasurer’s decision on 16 February 2021 is in response (...)

The Indian Competition Authority dismisses allegations of cartelization and abuse of dominance by a provider of home loan services (ICICI Bank)
Lakshmikumaran & Sridharan (New Delhi)
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Lakshmikumaran & Sridharan (New Delhi)
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Lakshmikumaran & Sridharan (New Delhi)
KEY POINTS Existence of large number of players in the home loan market shows that ICICI Bank (“ICICI”) cannot operate independently in the market and, hence cannot be considered to be in a position of dominance in the relevant market. In the absence of any evidence indicating an agreement or (...)

The Indian Competition Authority dismisses allegations of abuse of dominance by a reinsurance company as its client insurance companies retain the freedom to decide their premium rates as well as their reinsurer under national law (Automotive Tyres Manufacturers Association / General Insurance Corporation of India)
Lakshmikumaran & Sridharan (New Delhi)
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Lakshmikumaran & Sridharan (New Delhi)
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Lakshmikumaran & Sridharan (New Delhi)
KEY POINTS The markets for insurance and reinsurance exist as separate markets and insurance companies have the commercial freedom to price their policies as they deem fit according to the market conditions and decisions taken in the reinsurance market do not place any restriction on insurance (...)

The Luxembourg Administrative Tribunal rules for the first time on the Competition Authority’s competence in matters of ex post control of concentrations in the energy sector (Fédération des Artisans / Encevo / Enovos Luxembourg / Paul Wagner / Fils)
Bonn & Schmitt (Luxembourg)
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Ecole de Formation du barreau (Paris)
I. Introduction On January 25, 2021 the Administrative Tribunal of the Grand Duchy of Luxembourg (hereinafter the “Administrative Tribunal”) rendered a judgment ruling for the first time on the competence of the Competition Council of the Grand Duchy of Luxembourg (hereinafter the “Competition (...)

The German Parliament passes the 10th amendment to the Restraints of Competition Act which provides modifications and changes regarding abuse control
Hogan Lovells (Dusseldorf)
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Hogan Lovells (Dusseldorf)
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Hogan Lovells (Dusseldorf)
On 14 January 2021, the German parliament passed the long-awaited 10th amendment to the Act against Restraints of Competition (ARC). This came after the governing parties, CDU/CSU and SPD, had submitted a final amendment "at the eleventh hour" which provided for some additional modifications (...)

The Turkish Administrative Court issues noteworthy judgements setting standard of proof for abuse of dominance (Sahibinden.com) (Enerjisa)
ELIG Gürkaynak Attorneys-at-Law (Istanbul)
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ELIG Gürkaynak Attorneys-at-Law (Istanbul)
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ELIG Gürkaynak Attorneys-at-Law (Istanbul)
In 2019 and 2020, Turkish administrative courts handed down noteworthy judgments concerning two particular decisions of the Turkish Competition Board (“Board”). In both of these cases, namely the (i) Sahibinden Bilgi Teknolojileri Pazarlama ve Tic. A.Ş. (“Sahibinden”) judgment rendered by the Ankara (...)

The Belgian Competition Authority rules that a national football association’s conditions to obtain a professional license are prima facie incompatible with competition law and orders interim measures (Virton / RBFA)
University of Liège
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Corporate Tribunal (Lège)
On 19 November 2020, the Belgian Competition Authority (“BCA”) ordered interim measures against the Royal Belgian Football Association (“RBFA”) following a request filed by the professional football club Royal Excelsior Virton (“RE Virton”). The BCA considered that the RBFA’s refusal to grant a (...)

The Brussels Court of Appeal annuls the Competition Authority’s decision rejecting a football club’s request for interim measures (Virton / RBFA)
Van Bael & Bellis (Brussels)
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Van Bael & Bellis (Brussels)
In a judgment delivered on 19 November 2020, the Markets Court of the Brussels Court of Appeal (Marktenhof / Cour des marchés) (the Markets Court) annulled the decision adopted on 29 June 2020 by the Competition College (Mededingingscollege / Collège de la concurrence) of the Belgian Competition (...)

The Belgian Competition Authority imposes interim measures requested by a football club following an appeal judgment (Virton / RBFA)
Van Bael & Bellis (Brussels)
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Van Bael & Bellis (Brussels)
On 19 November 2020, the Competition College (Mededingingscollege / Collège de la concurrence) of the Belgian Competition Authority (Belgische Mededingingsautoriteit / Autorité belge de la Concurrence - the BCA) imposed interim measures on the Royal Belgian Football Association (the RBFA) at the (...)

The EU General Court confirms the Commission’s decision finding that a national rail company abused its dominant position on the market (Lietuvos geležinkelai)
ELIG Gürkaynak Attorneys-at-Law (Istanbul)
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Balcıoğlu Selçuk Akman Keki (BASEAK) (Istanbul)
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ELIG Gürkaynak Attorneys-at-Law (Istanbul)
The Factors Affecting the Use of Essential Facilities Doctrine in Light of the Lithuanian Railway v Commission Decision: A Comparison with the Turkish Practice and Potential Implications 1) Introduction On November 18, 2020, the General Court of the European Union (“General Court”) upheld the (...)

The Indian Competition Authority launches an investigation into allegations of abuse of dominance by a Big Tech company in the Android app store market (Google)
Lakshmikumaran & Sridharan (New Delhi)
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Lakshmikumaran & Sridharan (New Delhi)
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Lakshmikumaran & Sridharan (New Delhi)
KEY POINTS Even in cases where an information is filed anonymously before the Competition Commission of India (“CCI”), it is within the powers of the Director General (“DG”) to cross-examine the informant; Googles’ market position in the android app market provides it with a significant market (...)

The US DoJ files an antitrust complaint against a search engine for abuse of dominance (Google)
Orrick, Herrington & Sutcliffe (Washington DC)
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Orrick, Herrington & Sutcliffe (Washington DC)
On October 20, the U.S. Department of Justice filed its long-awaited antitrust complaint against Google, joined by 11 state Attorneys General (Arkansas, Florida, Georgia, Indiana, Kentucky, Louisiana, Mississippi, Missouri, Montana, South Carolina, and Texas). The lawsuit was filed in the U.S. (...)

The German Federal Court of Justice rules on the burden of proof for showing exhaustion of trademark right (Amazon / Coty)
Van Bael & Bellis (Brussels)
On 15 October 2020, the German Federal Court of Justice (“FCJ”) issued a judgment on the burden of proof for showing the exhaustion of trademark rights in a case pitting Coty against Amazon. After having made a test purchase from Amazon of two bottles of a perfume bearing the “JOOP!” trademark on (...)

The Turkish Administrative Court upholds the fines imposed by the Competition Authority on two electricity sales companies for abuse of dominance (Rescs / Ayedas)
ELIG Gürkaynak Attorneys-at-Law (Istanbul)
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Balcıoğlu Selçuk Akman Keki (BASEAK) (Istanbul)
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ELIG Gürkaynak Attorneys-at-Law (Istanbul)
(1) Introduction In 2018, in its Enerjisa decision, the Turkish Competition Board (“ Board ”) had imposed administrative fines amounting to a total of TRY 143 million on three retail electricity sales companies (namely AYESAŞ, BAŞKENT and TOROSLAR) (together, the “ RESCs ”) and one electricity (...)

The US Court of Appeals for the Ninth Circuit strikes down a sweeping injunction against a semiconductor company and reins in an expansive interpretation of the Sherman Act (Qualcomm)
Skadden, Arps, Slate, Meagher & Flom (New York)
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Skadden, Arps, Slate, Meagher & Flom (Washington)
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Skadden, Arps, Slate, Meagher & Flom (Washington)
On August 11, 2020, the U.S. Court of Appeals for the Ninth Circuit decisively reversed the Federal Trade Commission’s (FTC or Commission) controversial district court win challenging Qualcomm’s licensing practices. In rejecting every aspect of the lower court’s decision, the Ninth Circuit panel (...)

The US Court of Appeals for the Ninth Circuit overturns a ruling finding that a semiconductor company’s licensing practice abused its dominant position (Qualcomm)
Hogan Lovells (Washington)
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Hogan Lovells (Washington)
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United States Senate (Washington)
On 11 August 2020, a panel of the U.S. Court of Appeals for the Ninth Circuit (“Ninth Circuit”), in a unanimous opinion by Judge Callahan, reversed the U.S. Federal Trade Commission’s (“FTC’s”) win in the district court against Qualcomm Inc. (“Qualcomm”) and upheld Qualcomm’s licensing practices, (...)

The Italian Supreme Administrative Court refers to the EU Court of Justice questions concerning the interpretation and application of Art. 102 TFEU following an abuse of dominance in the electricity market (Enel)
Luiss Guido Carli University (Rome)
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Bird & Bird (Rome)
On 20 July, the Italian Supreme Administrative Court (Consiglio di Stato, CDS) referred to the Court of Justice (CJ) several questions concerning the interpretation and application of Article 102 TFEU. In the context of the dispute following the Italian Competition Authority’s decision to (...)

The German Federal Court of Justice overturns the Dusseldorf Court of Appeals’ interim decision and finds an online social media platform to have abused its power in collecting data from different sources (Facebook)
Cleary Gottlieb Steen & Hamilton (Cologne)
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Cleary Gottlieb Steen & Hamilton (Cologne)
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Cleary Gottlieb Steen & Hamilton (Cologne)
On June 23, 2020, the Federal Court of Justice (“FCJ”) overturned the Düsseldorf Court of Appeals’ (“DCA”) interim decision and rejected Facebook Inc.’s (“Facebook”) request to suspend the enforceability of the Federal Cartel Office’s (“FCO”) prohibition decision. The FCJ disagreed with the FCO’s (...)

The German Federal Court of Justice provisionally confirms an allegation against a social media company for abusing its dominant position (Facebook)
German Competition Authority (Bonn)
Federal Court of Justice provisionally confirms allegation of Facebook abusing dominant position* Facebook uses terms of service that also allow for the processing and use of user data that are collected online outside the Facebook platform. The Bundeskartellamt prohibited Facebook from (...)

The German Federal Court of Justice preliminarily confirms that an online platform abused its dominant position on the national market of social networks (Facebook)
Van Bael & Bellis (Brussels)
On 23 June 2020, the German Federal Court of Justice (“FCJ”), in summary proceedings, preliminarily confirmed the finding of the Federal Cartel Office (“FCO”) that Facebook had abused its dominant position. It overturned the decision of the Higher Regional Court of Düsseldorf that had suspended the (...)

The German Federal Court of Justice confirms abuse of dominance over data collection by an online platform without the user’s explicit consent (Facebook)
Bird & Bird (Dusseldorf)
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Bird & Bird (Dusseldorf)
The Federal Court of Justice (FCJ) rejected Facebook’s application for suspensive effect in connection to its appeal to the Higher Regional Court of Düsseldorf against the decision of the Federal Cartel Office (FCO) prohibiting Facebook from collecting and processing Facebook users’ data generated (...)

The Dutch Trade and Industry Appeals Tribunal annuls the Competition Authority decision requiring telecommunications providers to open networks (KPN / VodafoneZiggo / T-Mobile / Tele2)
Van Bael & Bellis (Brussels)
On 17 March 2020, the Dutch Trade and Industry Appeals Tribunal (“Appeals Tribunal”) reversed a decision of the Authority for Consumers & Markets (“ACM”) which required telecommunications provider KPN and cable provider VodafoneZiggo to open their fixed networks to other providers. On 27 (...)

The Dutch Trade and Industry Appeals Tribunal quashes the Competition Authority’s finding of a joint dominance in the retail broadband market (KPN / VodafoneZiggo / T-Mobile / Tele2)
Oxera (London)
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Oxera (London)
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Oxera (Amsterdam)
On 17 March 2020, the Dutch Trade and Industry Appeals Tribunal (CBb) published its long-awaited verdict on the appeal against the Netherlands Authority for Consumers and Markets (ACM) 2018 finding of joint dominance in the Dutch retail broadband market. Why did the CBb rule in favour of the (...)

The Dutch Trade and Industry Appeals Tribunal reverses a decision of the Competition Authority requiring telecom providers to open up their fixed networks in the Netherlands to other providers (KPN / VodafoneZiggo / T-Mobile / Tele2)
KPN (Amsterdam)
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Bird & Bird (The Hague)
On 17 March 2020, the Dutch Trade and Industry Appeals Tribunal (“CBb”) reversed the 2018 decision of the Authority for Consumers and Markets (“ACM”) requiring telecom providers KPN and VodafoneZiggo to open up their fixed networks in the Netherlands to other providers. In September 2018, the ACM (...)

The Indian National Company Law Appellate Tribunal upholds the Competition Authority’s decision that a company mandating a party to sign an agreement containing unfair and restrictive clauses is tantamount to abuse of its dominance (Verifone)
Supreme Court of India
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Supreme Court of India
Introduction The National Company Law Appellate Tribunal (NCLAT) by way of its common order dated 13 March 2020 dismissed two appeals preferred by M/s Verifone India Sales Pvt Ltd. (Appellant/ OP 1/ Verifone) against two separate orders passed by the Competition Commission of India (CCI). (...)

The UK Court of Appeal of England and Wales considers the test for excessive pricing after an undertaking had charged unfairly high prices for phenytoin sodium capsules (Pfizer / Flynn)
Bristows (London)
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Bristows (London)
Introduction In December 2016, the UK’s Competition and Markets Authority (CMA) found that Pfizer and Flynn had charged unfairly high prices for phenytoin sodium capsules, an important anti-epilepsy drug, in breach of competition law. The CMA imposed fines totalling £90 million. Pfizer and Flynn (...)

The UK Court of Appeal of England & Wales provides guidance on the legal test for excessive and unfair pricing after finding that an undertaking is charged unfairly high prices for phenytoin sodium capsules (Pfizer / Flynn)
Covington & Burling (Brussels)
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Latham & Watkins (Brussels)
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Norton Rose Fulbright (Brussels)
Under Article 102 of the Treaty on the Functioning of the European Union (“TFEU”), an undertaking may abuse its dominant position by “directly or indirectly imposing unfair purchase or selling prices”. The UK Court of Appeal recently provided guidance regarding the legal test to determine whether (...)

The UK Court of Appeal of England and Wales dismisses the Competition Authority’s appeal against a ruling quashing the fines imposed on two pharmaceutical companies for charging excessive and unfair prices for an anti-epilepsy drug (Pfizer / Flynn)
Van Bael & Bellis (Brussels)
On 10 March 2020, the UK’s Court of Appeal dismissed the Competition and Market Authority’s (“CMA”) appeal against a 2018 ruling by the Competition Appeals Tribunal (“CAT”) that quashed the CMA’s 2016 fine imposed on Pfizer and Flynn for charging excessive and unfair prices for phenytoin sodium (an (...)

The UK Court of Appeal of England and Wales seeks to reinstate record fines imposed on pharmaceutical companies for abuse of dominant position through excessive and unfair pricing of an anti-epilepsy drug (Pfizer / Flynn)
Herbert Smith Freehills (London)
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Herbert Smith Freehills (Brussels)
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Herbert Smith Freehills (London)
On 10 March 2020 the UK Court of Appeal handed down its hotly anticipated judgment in Flynn Pharma Limited & Anr vs Competition and Markets Authority. The UK Competition and Markets Authority (CMA) was seeking to reinstate record fines totalling £89.4m imposed on pharmaceutical companies (...)

The UK Court of Appeal of England and Wales imposes agency discretion in the methodology to establish the unfairness of prices, thereby increasing the burden of proof on companies to avoid a finding of excessive pricing (Pfizer / Flynn)
Skadden, Arps, Slate, Meagher & Flom (Brussels)
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Skadden, Arps, Slate, Meagher & Flom (Brussels)
The UK Court of Appeal Overturns the CAT & Imposes Agency Discretion on Excessive Price Benchmark* On March 10, 2020, the England and Wales Court of Appeal (CoA) handed down a significant ruling that reintroduces agency discretion in the methodology used to establish the unfairness of (...)

The UK Court of Appeal of England and Wales provides guidance regarding the legal test to determine whether pricing is excessive and unfair in the pharmaceutical market (Pfizer / Flynn)
Norton Rose Fulbright (Brussels)
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Latham & Watkins (Brussels)
The UK Court of Appeal Clarifies the Legal Test for Excessive Pricing* Under Article 102 of the Treaty on the Functioning of the European Union (“TFEU”), an undertaking may abuse its dominant position by “directly or indirectly imposing unfair purchase or selling prices”. The UK Court of Appeal (...)

The UK Court of Appeal of England and Wales upholds the Competition Appeal Tribunal’s quashing of the Competition Authority’s decision against pharmaceutical undertakings who had allegedly abused their dominant position by pricing their epilepsy drug unfairly (Pfizer / Flynn)
White & Case (Brussels)
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White & Case (Brussels)
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Hausfeld (London)
On 10 March 2020 the Court of Appeal upheld the Competition Appeal Tribunal’s (CAT) quashing of the Competition and Markets Authority’s (CMA) decision that Pfizer and Flynn Pharma (Flynn) had abused their dominant positions in the market by pricing their epilepsy drug unfairly. Among other (...)

The Indian National Company Law Appellate Tribunal overrules the Competition Authority’s order in an abuse of dominance case in the e-commerce sector (All India Online Vendors Association / Flipkart India)
Vaish Associates Advocates (New Delhi)
NCLAT directs investigation into alleged abuse of dominant position by Flipkart -Quashes earlier CCI order closing the case* By a recent judgment dated 04.03.2020, the Hon’ble National Company Appellate Tribunal (“NCLAT”) has set aside the order dated 06.11.2018 passed by the Competition (...)

The Turkish Competition Authority imposes fines totaling €13 million on a Big Tech company for excluding its competitors in shopping comparison services (Google)
Balcıoğlu Selçuk Akman Keki (BASEAK) (Istanbul)
On May 27, 2020, the Turkish Competition Authority (“TCA”) published its Google Shopping Decision (13.02.2020, 20-10/119-69) whereby it imposed an administrative fine amounting to approx. EUR 13 million on Google for hindering the activities of its competitors in the “shopping comparison services (...)

The Turkish Competition Authority publishes its first investigation concerning abuse of dominance by a standard-essential patent holder (Philips)
Balcıoğlu Selçuk Akman Keki (BASEAK) (Istanbul)
Turkish Competition Authority’s (“TCA”) Philips Decision (26.12.2019, 19-46/790-344 – published on 27.05.2020) is quite significant as it is the first time that the TCA examined the conducts of a Standard Essential Patent (“SEP”) holder within the scope of Article 6 of the Act No. 4054 on the (...)

The Turkish Administrative Court annuls the fines imposed by the Competition Authority due to failure to establish the required standards for competition law infringement in excessive pricing cases (Sahibinden.com)
ELIG Gürkaynak Attorneys-at-Law (Istanbul)
This case note analyses Ankara 6th Administrative Court’s (the “Administrative Court”) annulment judgment (18.12.2019; 2019/946 E., 2019/2625 K.) through which the Administrative Court reviewed the Turkish Competition Board’s (the “Board”) decision dated 01.10.2018 and numbered 18-36/584-285, (...)