April 2009

Anticompetitive practices

The EU General Court reduces the fines imposed by the Commission against leading Japanese video games manufacturer (Nintendo)
DG COMP (Brussels)
"The judgments in the Nintendo case"* I. Introduction This article concerns the Commission Decision against Nintendo and seven of its distributors and, in particular, the judgments handed down on 30 April 2009 by the Court of First Instance (CFI) in the appeals against that Decision by (...)

The US District Court for the Middle District of Florida imposes a record jail sentence for antitrust conspiracy (Baci)
Jones Day (Washington DC)
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Jones Day (Washington DC)
Earlier this year, the U.S. Department of Justice obtained the longest term ever imposed for a single antitrust violation. It wanted more. Peter Baci, former executive of a U.S. shipping company, was sentenced by a Florida federal district court to serve four years in jail and pay a $ 20,000 (...)

The US State of Maryland rejects federal rule of reason standard established by US Supreme Court in Leegin, amending its state antitrust statute to make minimum resale price maintenance agreements per se illegal
McDermott Will & Emery (Washington)
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McDermott Will & Emery (Chicago)
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McDermott Will & Emery (Chicago)
New state law could affect implementation of minimum resale price maintenance programs. Suppliers should review their minimum resale price programs for their resellers in the United States following the passage of a new law in the State of Maryland prohibiting agreements that establish minimum (...)

The European Commission publishes a communication on the functionning of Regulation 1/2003
DG COMP (Brussels)
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DG COMP (Brussels)
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DG COMP (Brussels)
"Regulation 1/2003: How has this landmark reform worked in practice?"* I. Introduction The entry into force of Council Regulation 1/2003 on 1 May 2004 ushered in the most comprehensive reform of procedures to enforce Articles 81 and 82 of the EC Treaty since 1962. Regulation 1/2003 modernised (...)

The Danish Competition Authority adopts decision concerning resale price maintenance found in the sector of motor vehicle fuels (OK)
Van Bael & Bellis (Brussels)
On 29 April 2009, the Danish Competition Council issued a decision finding that a Danish fuel supplier, OK a.m.b.a., and its wholly-owned subsidiary, DK-Benzin A/S, had infringed the national provision equivalent to Article 81 EC by engaging in resale price maintenance practices with some of (...)

The Italian Competition Authority inflicts fines in excess of € 13 million to several firms operating in lead recycling, and their consortium, for fixing market shares and foreclosing the creation of alternative consortia (COBAT)
Luigi Prosperetti (Milan)
COBAT was formed to in 1998 as the Consortium for the gathering and processing of used lead-based batteries. Up to 2006, COBAT enjoyed a legal monopoly, and any company engaged in any activity concerned with the recycling of lead-based batteries (i.e.: smelters, producers or importers of (...)

The Danish Competition Council grants an individual exemption for a horizontal cooperation between 27 small and medium-sized car insurance companies (Taksatorringens vedtægter)
Kromann Reumert (Copenhagen)
The Danish Competition Council exempted horizontal cooperation between 27 small and medium-sized motor vehicle insurance companies for the third time in a row. The cooperation consisted of a jointly established association of insurance appraisers (taksatorringen) that: (1) assess motor vehicle (...)

The Greek Competition Authority fines a leading US group for restricting parallel trade in washing powder (Unilever)
Van Bael & Bellis (Brussels)
According to a press release of 28 April 2009, the Greek Competition Authority imposed fines totalling approximately € 8 million on Unilever’s Greek subsidiary and six supermarket chains (AB Vasilopoulos, Metro AEVE, Makro C&C, Afi Veropouli AEVE, Atlantik and Masoutis) for entering into (...)

A German court examines a €600 M damages claim against bleaching cartel (CDC)
Van Bael & Bellis (Brussels)
According to a press release of 23 April 2009, Cartel Damage Claims Hydrogen Peroxide SA (“CDC HP”), a Brussels-based part of CDC, has filed an action for damages before the Regional Court of Dortmund against six members of the hydrogen peroxide cartel, namely Evonik Degussa GmbH, Akzo Nobel (...)

The EU Court of Justice rules that a trademark owner can oppose the resale of his luxury goods by discount stores (Copad / Christian Dior couture)
Van Bael & Bellis (Brussels)
On 23 April 2009, in its judgment in Case C-59/08 Copad SA v Christian Dior couture SA, the European Court of Justice (“ECJ”) shed further light on the often contentious topic of exhaustion of trade mark rights in respect of luxury goods. Christian Dior Couture SA (“Dior”) had concluded a licence (...)

The ECJ Advocate General Kokott renders opinion on parent liability (Akzo)
Van Bael & Bellis (Brussels)
On 23 April 2009, Advocate General Kokott gave her opinion on an appeal by Akzo Nobel NV and others against a judgment of the CFI of 12 December 2007. The CFI’s judgment confirmed a Commission decision of December 2004 upholding the fines imposed on the Akzo Nobel group for its participation in (...)

The EU Court of Justice dismisses appeal against rejection of complaint with respect to collective management of copyright for musical works in Greece (AEPI)
Court of First Instance of Namur
On 23 April 2009, the European Court of Justice (“ECJ”) dismissed the appeal brought by AEPI against a judgment of the Court of First Instance (“CFI”) upholding the Commission’s decision to reject a complaint lodged by AEPI, a Greek entity in charge of collective management of intellectual property (...)

The French Competition Authority sanctions a professional association for having urged to territorial monopolies for dispensing pharmacists (Ordre des pharmaciens de Basse-Normandie)
French Competition Authority (Paris)
Press Release published on the official website of the French Competition Authority. The Autorité de la concurrence condemns the Regional Council of the Ordre des pharmaciens de Basse-Normandie for urging a retirement home to use the pharmacies that are closest to it.* Referred to by a (...)

The Spanish Competition Authority overturns earlier decision and rules that an agreement between a regional health service and a professional association of pharmacists infringes Art. 1 of the Competition Act (Colegio Farmacéuticos Castilla-La Mancha)
Cleary Gottlieb Steen & Hamilton (Brussels)
The Spanish National Competition Commission (“CNC”) has ruled that the cooperation agreement between the Regional Health Service of Castilla-La Mancha (“SESCAM”) and the regional Professional Association of Pharmacists (the “Association”) dated June 29, 2006 (the “Agreement”), amounts to a market (...)

The Portuguese Competition Authority decides to end 8 procedures regarding restrictive practices in the service-station market (Anti-competitive practices in the liquid road-fuels sector )
Sérvulo (Lisbon)
Last April 21st 2009, the Portuguese Competition Authority (Autoridade da Concorrência - “AdC”) announced the decision to discontinue eight procedures for breach of article 4 of the Competition Law (Law 18/2003), considering that some parallel behavior existent between oil companies and some (...)

The Russian Supreme Arbitration Court uphold the decision of the NCA establishing concerted practices among supermarket chains and clarify the standard of proof in cases related to establishing the existence of concerted practices (Russian Competition Authority / Ak Bars Torg)
University of Macau - Faculty of Law
Following numerous complaints lodged by the manufacturers of food products, the FAS initiated an investigation regarding the existence of the concerted practices among supermarket chains in the Republic of Tatarstan. The FAS discovered a number of similar or identical conditions in the (...)

A German court rules on restrictions on sales through auction websites in the context of selective distribution (Sternjakob)
Van Bael & Bellis (Brussels)
In a judgment of 21 April 2009, the Regional Court of Berlin (the Court) concluded that restrictions on sales through eBay imposed by a supplier of school bags on its selective distributors would be anti-competitive. According to this judgment, Sternjakob, a manufacturer of school bags, had (...)

The UK Office of Fair Trading releases the results of its sector inquiry on the market for newspaper and magazine distribution (Newspaper and magazine distribution in the UK)
DLA Piper (London)
Summary On 22 October 2008 the Office of Fair Trading (OFT) produced the following three reports, as well as a background paper, as part of its enquiry into the distribution of newspapers and magazines in the United Kingdom. The reports were as follows : (a) a legal Opinion from the OFT on (...)

The German Competition Authority imposes multi-million fines against liquefied gas suppliers (Westfalen / Münster / Propan Rheingas / KG / Brühl)
Mutze Korsch Rechtsanwaltsgesellschaft (Düsseldorf)
Background In December 2007 and February 2008, the German Competition Authority (Federal Car-tel Office, "FCO”) imposed fines totalling close to € 209 million against seven suppliers of liquefied gas and their managing directors for entering into customer protection agree-ments. The companies (...)

The Greek Competition Authority fines an automobile manufacturer for resale price maintenance (Fiat)
Van Bael & Bellis (Brussels)
According to a press release of 14 April 2009, the Greek Competition Authority has decided to impose a fine totalling approximately € 9.6 million on Fiat’s Greek subsidiary. First, the Fiat company was found to have fixed its distributors’ profit margins between 1997-2000 in breach of Article 81 (...)

The Italian Competition Authority closes investigation on common interbank charges and MAV payment services by accepting commitments (Associazione Bancaria Italiana)
Giannino SI (Monserrato)
By a recent decision, the Italian Competition Authority (ICA) has closed an investigation into two anticompetitive agreements affecting the banking market for payment services by accepting and making binding a set of commitments presented by the parties upon the basis of Art. 14-ter of the Act (...)

The Croatian Competition Authority imposes interim measures following an assessment of the unilateral termination of the motor vehicle distribution agreement (Simatic / Tomic)
University of Macau - Faculty of Law
Summary The Croatian Competition Authority ordered the exclusive importer of the BMW automobiles into Croatia Tomic & Co. d.o.o. to include its former distributor and repair service provider Simatic d.o.o. in the network of authorized spare parts retailers and repair service providers. (...)

The Budapest Court of Appeal notably reduces the fines in the egg cartel case (Magyar Tojóhibrid-tenyésztõk és Tojástermelõk Szövetsége)
Szabó Kelemen & Partners
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University of East Anglia (Norwich)
The Budapest Court of Appeal upheld, in its second instance judgement, the verdict of the Metropolitan Court of Budapest in the “Egg Cartel” case concerning an infringement decision. The court decreased the fines of the undertakings involved and the Alliance of Hungarian Henhybrid-breeders and (...)

The UK High Court strikes out a representative claim brought on behalf of “all other direct or indirect purchasers of air freight services”, refusing to stretch the scope of the English civil procedure rules in order to encourage the bringing of private damages actions (Emerald Supplies / British Airways)
European Commission - Legal Service (Brussels)
In striking out a representative claim brought on behalf of “all other direct or indirect purchasers of air freight services”, the English High Court has refused to stretch the scope of the English civil procedure rules in order to facilitate the bringing of such damages actions. Background The (...)

The German Cartel Office fines a leading software company for resale price maintenance (Microsoft)
Van Bael & Bellis (Brussels)
According to a press release of 8 April 2009, the German Federal Cartel Office (“FCO”) has fined Microsoft Deutschland GmbH € 9 million for resale price maintenance of its software package “Office Home & Student 2007”. According to the FCO, employees of Microsoft and a major retailer agreed on (...)

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 German Federal Cartel Office imposes a fine of € 9 M to the leading software company for having influenced in an anticompetitive way the resale price of a software package (Microsoft Deutschland)
Linklaters (Düsseldorf)
Description of the impugned case The case deals with indirect resale price maintenance, i.e. the recommendation of prices combined with further measures in order to coordinate the dealers’ pricing. Type of competition analysis n/a Discussion of potential redeeming efficiencies for RPM ? n/a (...)

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 DC)
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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 German Federal Court of Justice affirms admissibility of damages claims against cement cartel members
Van Bael & Bellis (Brussels)
The highest civil court in Germany, the Federal Court of Justice, has recently affirmed the admissibility of the private damages actions pending against participants in the German cement cartel. In May 2008, on appeal, the Higher Regional Court Düsseldorf had confirmed the admissibility of the (...)

The UK Competition Commission publishes the conclusions of its rolling stock leasing market investigation (Rolling Stock Leasing Market Investigation)
KPMG (London)
1. Introduction and background In April 2007 the Office of the Rail Regulator made a reference under section 130 of the Enterprise Act 2002 to the Competition Commission (CC) requesting an investigation into the leasing of rolling stock for the provision of passenger services in the UK and, (...)

The Court of Appeal of Brussels upholds the NCA’s ruling holding that the opening days/hours and advertising provisions for pharmacy outlets, as set by the Belgian Pharmacists Association, were contrary to competition law (Ordre des pharmaciens)
Lexing (Liège)
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Praetica (Bruxelles)
1. The Parties The parties to the matter were: L’Ordre des pharmaciens (the Belgian Pharmacists Association, “BPA”), a public body established in Brussels; Mrs. E. Servais, pharmacist in Grez-Doiceau; Les Pharmacies Mont-Saint-Pont, a private corporation established in Braine l’Alleud; Mr. G. (...)

The EU Commission issues a statement of objections in multilateral interchange fees case (Visa Europe)
Van Bael & Bellis (Brussels)
According to recent reports, the Commission has issued an SO to Visa Europe Limited (“Visa”) with regard to the setting of multilateral interchange fees (“MIF”). An interchange fee is charged by an issuing bank (the customer’s bank) to an acquiring bank (the retailer’s bank) for sales transactions (...)

The EU Court of Justice rules on non-compete and resale price maintenance in the context of block exemption regulations (Pedro IV Servicios SL /Total España
Van Bael & Bellis (Brussels)
On 2 April 2009, the European Court of Justice (“ECJ”) delivered a judgment in Pedro IV Servicios SLv. Total España SA, a preliminary reference concerning the analysis of non-compete obligations and alleged resale price maintenance in the light of Regulation 1984/83 (the former block exemption (...)

Unilateral Practices

The UK Competition Appeal Tribunal upholds the decision of the energy regulator, which found that utility company had abused its dominant position in the market for the provision of domestic-sized gas meters, including the ancillary service of meter maintenance (National Grid)
Shoosmiths (Thames Valley)
On 29 April 2009, the Competition Appeal Tribunal ("CAT") upheld the February 2008 decision of the UK energy regulator OFGEM, which found that National Grid had abused its dominant position in the market for the provision of domestic-sized gas meters, including the ancillary service of meter (...)

The EU Commission opens proceedings against two telecommunication operators (Telekomunikacja Polska / Slovak Telekom)
Van Bael & Bellis (Brussels)
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Practising Law Institute (New York)
On 27 April 2009, the Commission issued a press release announcing that it had opened formal proceedings against Telekomunikacja Polska and Slovak Telekom for possible breaches of Article 82 EC. In particular, the Commission announced that it is investigating Slovak Telekom, the Slovak telecoms (...)

The EU Commission opens proceedings against Swedish electricity transmission system operator concerning limitations on the capacity for electricity exports (Svenska Kraftnät)
Van Bael & Bellis (Brussels)
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Practising Law Institute (New York)
On 23 April 2009, the Commission issued a press release announcing that it had opened formal proceedings against Svenska Kraftnät (“SvK”), the Swedish electricity transmission system operator, for possible breaches of Article 82 EC. SvK is a State-owned central administrative authority in Sweden (...)

The Italian Competition Authority opens an investigation for an alleged abuse by the national postal operator in the market of collection and payment services (Poste Italiane / Aumento Commissione Bollettini)
Luiss Guido Carli University (Rome)
The Italian Antitrust Authority (hereinafter, also “IAA”) has recently started an investigation in the market of collection and payment services for an alleged abuse of dominant position by the Italian postal operator. Party under investigation The investigation started after a complaint sent (...)

The Italian Regional Administrative Court in Lazio rules on the power of the Italian Competition Authority to accept commitments offered by undertakings under investigation for alleged anticompetitive conducts in the roadside assistance market (ANAS / Società Strada dei Parchi / Società Autostrada Tirrenica)
Ashurst (Brussels)
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Legance - Studio Legale Associato (Rome)
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Iliad (Milano)
Background With two decisions issued on 22 April 2009, the Italian Administrative Tribunal (Tribunale Amministrativo Regonale, “TAR”) ruled on the power of the Italian Competition Authority (“ICA”) to accept commitments offered by undertakings under investigation for alleged anticompetitive (...)

The Jersey Competition Authority releases its first decision establishing an abuse of dominant position in the sewerage services industry (Jersey State’s Transport and Technical Services Department)
Brown Brothers Harriman (BBH) (Luxembourg)
On 20 May 2009, the Jersey Competition Regulatory Authority released a decision which rules for the first time that a Public undertaking active in the sewerage services industry has abused its dominant position. In addition, the Jersey Competition Authority has imposed fines to sanction its (...)

The Turkish Competition Authority rejects a consumer complaint on the excessiveness of airport parking fees (Ankara Esenboga Airport)
University of Leeds
The Turkish Competition Authority (TCA) has rejected a consumer complaint alleging that the car park fees at the only airport in the capital (Ankara Esenboga Airport) are excessive. The case arose out of a consumer complaining to the TCA after having parked his vehicle at the airport car park (...)

The French Competition Authority abandons commitments procedure and adopts interim measures in photovoltaic case (Solaire Direct / EDF Group)
Van Bael & Bellis (Brussels)
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Practising Law Institute (New York)
On 8 April 2009, the French Competition Authority decided to reject commitments offered by the EDF group («EDF«) – the French electricity incumbent – with respect to the emerging market for photovoltaic electricity (the «photovoltaic market«) and instead to impose interim measures and continue its (...)

The French Competition Authority orders interim measures against an electricity provider on the photovoltaic solar power market (EDF)
French Competition Authority (Paris)
The Autorité de la concurrence orders EDF to modify its business communication in such a way as to separate the part relating to its public service activities from that of its subsidiaries involved in the competitive sector* Referred to by the Solaire Direct company, active in the emerging (...)

The Spanish Competition Authority fines electricity distributors €35,8M for abusing their dominant position on the power commercialisation market (Centrica / Electra de Viesgo / Endesa / Union Fenosa)
Hogan Lovells (Madrid)
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Allianz (Brussels)
On 2 April 2009, the Council of the Spanish Competition Authority (Consejo de la Comisión Nacional de la Competencia, hereinafter the “Council of the CNC”) imposed fines of a total amount of EUR 35 million upon Endesa Distribución , Iberdrola Distribución , Union Fenosa Distribución and Viesgo (...)

The Belgian Competition Authority confirms refusal by the Competition Auditor to adopt interim measures following alleged abuse of dominance by 10 pharmaceutical companies concerning pharmaceuticals parallel imports (Bofar)
Sheppard, Mullin, Richter & Hampton (Brussels)
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Adyen (Amsterdam)
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European Court of Justice (Luxembourg)
Introduction On 2 April 2009, the President of the Belgian Competition Council rejected the appeal by Bofar NV ("Bofar") against the decision of the Competition Auditor, which rejected Bofar’s request for interim measures following an alleged abuse of dominance by 10 pharmaceutical companies. (...)

The French Competition Authority dismisses application for interim measures against a leading mobile telephony operator in bundling case (Orange)
Van Bael & Bellis (Brussels)
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Practising Law Institute (New York)
On 2 April 2009, the French Competition Authority dismissed SFR‘s application for interim measures against Orange concerning the latter’s bundled offer of its broadband and «Unik« mobile telephony services. Orange‘s «Unik« package is characterised by the convergence between fixed and mobile telephony: (...)

The EU Court of Justice rules that proof of recouping losses is not required in predatory pricing cases (France Telecom / Wanadoo Interactive)
OECD - Competition Division (Mexico City)
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DG COMP (Brussels)
"Predatory pricing in the telecoms sector: the ECJ rules on the issue of recouping losses"* On 2 April 2009 the Court of Justice of the European Communities (‘ECJ’) delivered a judgment in the France Télécom case, dismissing its appeal. France Télécom sought to annul the judgment of the Court of (...)

Mergers

The German Competition Authority prohibits acquisition of petrol stations by a French oil company (Total / OMV)
Van Bael & Bellis (Brussels)
According to a press release of 29 April 2009, the German Federal Cartel Office (FCO) prohibited the proposed acquisition by Total, which owns the fourth largest petrol station network in Germany, of 59 petrol stations in Eastern Germany owned by OMV Deutschland GmbH. In the FCO’s view, the (...)

The German Competition Authority clarifies its approach towards an alleged oligopoly on the German retail petrol markets in a decision prohibiting the acquisition of 59 gas stations in Saxony and Thuringia (Total / OMV)
Dentons (Berlin)
In the decision of 29 April 2009, the German Federal Cartel Office (“FCO”) prohibited the proposed acquisition of OMV Deutschland GmbH’s (“OMV”) 59 petrol stations located in Saxony and Thuringia by Total Deutschland GmbH (“Total”). The FCO founded in its decision that the concentration to strengthen (...)

The UK OFT accepts failing firm defence to clear entertainment retail merger (HMV / ZAVVI)
Herbert Smith Freehills (Brussels)
On 28 April 2009, the Office of Fair Trading (“OFT”) announced that it had decided to clear the acquisition of 15 stores belonging to the Zavvi entertainment retail chain by HMV plc (“HMV”) on the basis that the Zavvi stores were a “failing firm”. The so-called failing firm defence can override prima (...)

The US FTC finalizes amendments to parts 3 and 4 of its rules of practice expediting administrative review of mergers
Skadden, Arps, Slate, Meagher & Flom (Washington DC)
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Skadden, Arps, Slate, Meagher & Flom (Washington DC)
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Fordham Competition Law Institute - FCLI (New York)
On April 27, 2009, the Federal Trade Commission adopted final rules amending Parts 3 and 4 of its Rules of Practice. The adoption of these rules is a culmination of efforts going back a couple of years to make changes that would expedite adjudications of allegedly anti-competitive merger (...)

The Chinese Antitrust Authority requires capacity divesture in a merger between two leading manufacturers of methyl methacrylate products (Mitsubishi Rayon / Lucite International Group)
Jones Day (Beijing)
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Jones Day (Beijing)
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Winston & Strawn (New York)
On April 24, 2009, the Chinese Ministry of Commerce (MOFCOM) announced conditional approval of the proposed acquisition of Lucite International Group Limited by Mitsubishi Rayon Co., Ltd. This is the first MOFCOM decision requiring parties to divest a portion of their production capacity as a (...)

The Slovak Republic amends the Competition Act in particular with regard to merger notification and leniency
Braun (Prague)
Introduction On 15 April 2009, the National Council of the Slovak Republic passed an amendment to the Act n° 136/2001 Coll. on Protection of Economic Competition (“Competition Act”). Pursuant to the explanatory memorandum, the purpose of the Amendment is to bring the Slovak competition rules into (...)

The Romanian Competition Authority fines foreign investor for failure to notify an economic concentration (Ameropa Holding/ Comcereal)
University of Macau - Faculty of Law
On 8 December 2008 a Swiss investment company Ameropa Holding AG (Ameropa) was notified that as a result of public tender, it became a majority shareholder of the Romanian agricultural company SC Comcereal SA (Comcereal). As the transaction exceeded the turnover thresholds for mandatory (...)

The French Competition Authority applies for the first time merger rules specific to the retail distribution sector (Pellier Metz, Bailly)
Vogel & Vogel (Paris)
The decision rendered on 8 April 2009 by the Competition Authority concerning the takeover of the company Pellier Metz SAS by the group Bailly SAS constitutes the first application of the new merger control provisions applicable to the distribution sector under the LME law of 4 August 2008 and (...)

The Belgian Competition Council refers the case back to the Competition Council’s Prosecutor for further investigation to assess implementation of remedies imposed following a merger in the cinema and theatre market in Belgium (Kinepolis)
Monard Law
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Lexing (Liège)
1. The parties UGC Belgium Plc. (“UGC”) is a cinema operator that owns three sites in Belgium. Kinepolis Group Plc. (“Kinepolis”) is the leading Belgian cinema operator with eleven cinema complexes all over the country. In 2008 it held a market share of 43.83 %. Kinepolis was created in 1997 (...)

The Bosnian Competition Authority prohibits a merger leading to the strengthening of dominant position on the bakery products market and inflicts financial penalties on the responsible individual for the supply of incorrect and misleading information (Klas / Sprind)
University of Macau - Faculty of Law
The merger notified to the Competition Authority of Bosnia & Herzegovina (Konkurencijsko vijeće BiH) (KV) concerned acquisition by Klas d.d. (Klas) of control over Sprind d.d. (Sprind), both undertakings active on the market for bakery products. At the time of the notification Klas was (...)

The Swedish Competition Authority, as part of a second phase investigation, clears a merger between the only two companies selling the same active pharmaceutical ingredient in the OTC market in Sweden (GlaxoSmithKline Dungarvan /AstraZeneca Tika)
Carlsberg (Copenhagen)
The parties to the transaction, i.e., GlaxoSmithKline Dungarvan ("GSK") and AstraZeneca Tika ("AZT") are active in Sweden within the field of, inter alia, consumer health. The Swedish Competition Authority ("SCA") divided the sale of pharmaceuticals into the following three markets; personal (...)

The UK Office of Fair Trading seeks undertakings in lieu of a referral to the Competition Commission in an anticipated acquisition of a company providing waste management, processing and related services to the medical sector (Cliniserve / SRCL)
Herbert Smith Freehills (London)
All views expressed are strictly personal views of the author. The present case note does not constitute legal advice and should not be relied on as such. On 21 November 2008, the Office of Fair Trading (the "OFT") announced its decision to seek undertakings from SRCL Limited (" SRCL") in (...)

State Aid

The European Commission adopts a Notice on a simplified procedure for treatment of certain types of State aid
DG COMP (Brussels)
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DG COMP (Brussels)
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DG COMP (Brussels)
"The Simplification Package in State Aid: Notice on Simplified Procedure and Best Practices Code"* I. Introduction In 2005, the Commission adopted the State Aid Action Plan (‘the SAAP’). While not ruling out the possibility of a later revision of the Procedural Regulation, the SAAP announced (...)

The European Commission adopts a Code of best practices for the conduct of State aid procedures
DG COMP (Brussels)
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DG COMP (Brussels)
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DG COMP (Brussels)
"The Simplification Package in State Aid: Notice on Simplified Procedure and Best Practices Code"* I. Introduction In 2005, the Commission adopted the State Aid Action Plan (‘the SAAP’). While not ruling out the possibility of a later revision of the Procedural Regulation, the SAAP announced (...)

The EU Commission approves the UK homeowners mortgage support scheme to help households affected by the financial downturn
DG COMP (Brussels)
"State aid: main developments between 1 January and 30 April 2009"* On 21 April 2009, the Commission approved the UK Homeowners Mortgage Support Scheme to help households affected by the financial downturn. The scheme aims to reduce the level of home repossessions likely to occur as a result (...)

The EU Commission authorises under the temporary framework a measure adopted by Luxembourg to limit the adverse impact of the current financial crisis on export firms (Short term export credit insurance scheme)
DG COMP (Brussels)
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Groupe Holder (Lille)
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DG COMP (Brussels)
"State aid: main developments between 1 January and 30 April 2009"* The Commission authorised on 20 April 2009 under the Temporary Framework a measure adopted by Luxembourg to limit the adverse impact of the current financial crisis on export firms. Under the notified scheme, the export-credit (...)

The UK Government notifies the EU Commission of its intentions to set up a new scheme to alleviate the funding constraints that banks are facing (Asset-Backed Securities Guarantee Scheme)
DG COMP (Brussels)
State aid: main developments between 1 January and 30 April 2009* On 17 April 2009, the UK notified its intention to set up another scheme to alleviate the funding constraints that banks are currently facing. By guaranteeing AAA rated residential mortgage-backed securities (‘RMBS’), the UK (...)

The Swedish Administrative Court of Appeal states that a municipality’s sale of a high school constitutes illegal State aid based on national provision while declining to rule on the EC State aid point of law (Christer Backstrom)
Djungo (Stockholm)
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General Court of the European Union (Luxembourg)
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Öberg & Associés (Stockholm)
Factual Background In May 2007, the municipal council in Täby, north of Stockholm, decided to close down the public activity at the high school “Tibble Gymnasium” and to approve that the school activity be carried on by a private undertaking (“Tibble Friståande Gymnasium AB” - “Tibble Indepedent (...)

The Swedish Administrative Court of Appeal finds that the privatisation of home-help services decided by the municipality constitutes illegal aid to an undertaking on the basis of national provision while refusing to consider the EC State aid point of law (Jonas Eklund)
Djungo (Stockholm)
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General Court of the European Union (Luxembourg)
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Öberg & Associés (Stockholm)
Factual Background In May 2008, Stockholm municipality decided to transfer the public home-help service in Rågsved and Hagsätra to a private undertaking, Vantörs Hemtjänst AB. Jonas Eklund, a resident in the municipality, initiated court proceedings pursuant to the Local Government Act. He argued (...)

The EU Commission decides that four State aid measures granted in favour of the UK postal incumbent are in line with EU State aid rules (Royal Mail)
DG COMP (Brussels)
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Groupe Holder (Lille)
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DG COMP (Brussels)
"State aid: main developments between 1 January and 30 April 2009"* On 8 April 2009, the Commission decided that four State aid measures granted in favour of the UK postal incumbent Royal Mail between 2001 and 2007 were in line with EU State aid rules. Since none of the measures had been (...)

The European Commission issues a notice on the enforcement of State aid law by national courts
DG COMP (Brussels)
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DG COMP (Brussels)
"The Commission notice on the enforcement of State aid law by national courts"* I. Introduction On 4 April 2009, the Commission adopted its new Notice on the enforcement of State aid law by national courts (‘the new Notice’). The new Notice replaces the former cooperation Notice dating back to (...)

Procedures

The Paris Court of Appeal opposes the Supreme Court on the admissibility of evidence obtained without the knowledge of the companies under investigation (Avantage / Sony / Philips)
Amcor (Zürich)
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Potamitisvekris (Athens)
On 29 April 2009, the Paris Court of Appeal dismissed for the second time the appeal of Philips and Sony against a decision of the Competition Council in 2005 condemning an agreement between the two companies and their respective distributors. In so doing, the Court of Appeal expressed its (...)

The Czech Supreme Administrative Court rules that the Competition Authority was entitled to sanction a cartel activity a part of which had already been sanctioned by the EU Commission (Toshiba)
Havel, Holasek (Prague)
I. Introduction On 10 April 2009, the Supreme Administrative Court of the Czech Republic (the «SAC») overturned a judgment of the Regional Court in Brno of 25 June 2008 that had annulled a decision of the Chairman of the Office for Protection of Competition (the «Office») of 26 April 2007 whereby (...)

The Czech Supreme Administrative Court rules that a continuous offence which lasted after the accession of the Czech Republic to the EU shall be treated as two separate offences (GIS cartel)
Norton Rose Fulbright (London)
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SauterRentsch (Prague)
On 10 April 2009, the Supreme Administrative Court overturned a judgment of the Regional Court in Brno which quashed a decision of the Chairman of the Office for the Protection of Competition (the “Office”) which imposed an overall fine of CZK 941,881,000 on 16 of the business groups ALSTOM, (...)

The UK High Court allows a defendant’s application to strike out the representative element of the claim in an action seeking relief from damages (Emerald Supplies / British Airways)
King’s College (London)
Emerald Supplies Ltd v British Airways Plc considered the availability of representative proceedings under the English and Welsh Civil Procedure Rules (’CPR’) . Before setting out the facts of the case and the decision of the High Court, which is currently being appealed, it may be useful briefly (...)

The UK High Court dismisses novel class action claim for alleged antitrust damages arising out of agreements or concerted practices relating to the supply of air freight services (Emerald Supplies / British Airways)
Linklaters (London)
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A&L Goodbody (Dublin)
The High Court today dealt a serious blow to claimants seeking to bring damages claims on a representative basis (which are, in substance, akin to "opt-out" class actions) by confirming that existing rules cannot be "stretched" to allow such claims in the English courts. In September 2008 two (...)

The EU Court of Justice Advocate General Bot proposes to annul General Court’s ruling on rights of defence in carbonless paper cartel appeal (Papierfabrik August Koehler)
Van Bael & Bellis (Brussels)
On 2 April 2009, Advocate General Bot issued his opinion in the appeal against the judgment of the CFI in the carbonless paper cartel case. This judgment upheld a Commission decision of December 2001, which found that eleven undertakings had infringed Article 81 EC by participating in a series (...)

The Lithuanian Parliament amends its competition act
Court of First Instance of Namur
On 25 April 2009, an amendment to the Lithuanian Competition Act entered into force. The amendment, which implements Regulation 1/2003 on the implementation of the competition rules laid down in Articles 81 and 82 EC, brings Lithuanian competition law in line with EC competition law. The main (...)

Regulatory

An Italian regional administrative Court finds the provisions of two ports’ regulations on self-handling of port operations unlawful and annuls refusal to authorise such services based on these provisions (Forship / Port Authority of Olbia and Golfo Aranci)
Giannino SI (Monserrato)
The regional administrative court of Sardinia (Tar Sardinia) has adjudicated on the provision of the regulation adopted by Port Authority of Olbia and Golfo Aranci or PAOGA in 2007 (the regulation) regarding the requirements to provide port operations at the ports of Olbia and Golfo Aranci in (...)

The US Food and Drug Administration (FDA) makes it possible for incremental pharmaceutical innovation to foreclose generic competitors and thereby cause antitrust concerns
CRA International (Toronto)
Incremental pharmaceutical innovation and antitrust concerns* Many pharmaceutical innovations are improvements on existing drug therapies as opposed to entirely new molecular or biologic entities. Such “incremental innovation” has been at the center of a range of legal disputes in the (...)

The UK Department for Environment, Food And Rural Affairs ("Defra") publishes the final report of the Cave review of competition and innovation in water markets
Linklaters (London)
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UK Competition Appeal Tribunal (London)
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Kirkland & Ellis (London)
On 22 April the Department for Environment, Food And Rural Affairs (Defra) published the final report of the Cave review of competition and innovation in water markets (the Report). The Report was published on the same date as the 2009 Budget Report in which the Government announced that it (...)

The French Competition Authority issues a opinion favourable to the strengthening of the ex-ante regulation on the wholesale audiovisual broadcasting services market
French Competition Authority (Paris)
Press Release published on the official website of the French Competition Authority. Wholesale audiovisual broadcasting services market: The Autorité de la concurrence delivers an opinion to the ARCEP in which it declares itself favourable to the strengthening of the ex-ante regulation.* In (...)

The French Competition Authority issues an opinion on payment timeframes in the book sector
French Competition Authority (Paris)
Press Release published on the official website of the French Competition Authority. Payment timeframes in the book sector: The Autorité de la concurrence has just issued a favorable opinion with regard to independent bookstores, specialized department stores and distance sales. However, it (...)

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