February 2016

Anticompetitive practices

The EU General Court confirms the Commission’s decision on immunity applications and attribution of liability (Deutsche Bahn / Schenker)
Blackstone Chambers (London)
The Freight-Forwarding Cartels in the General Court: Lessons on Leniency and Discretion*On 29 February 2016, the General Court handed down its judgments in Case T-265/12 Schenker Ltd v European Commission; Case T-267/12 Deutsche Bahn AG and others v European Commission, upholding the (...)

The Finnish Market Court fines a professional association for implementing unlawful price recommendations (Finnish Bakery Federation)
Finnish Competition and Consumer Authority (Helsinki)
Market Court imposes fines on the Finnish Bakery Federation for forbidden price recommendations* The Market Court has imposed a EUR 15,000 penalty to the Finnish Bakery Federation’s unlawful price recommendations in 2007–2011. The Market Court’s decision is in line with the penalty proposal (...)

The Finnish Supreme Court rules on competition damages limitation periods in a timber cartel (Timber procurement cartel)
Bird & Bird (Brussels)
,
Bird & Bird (Helsinki)
,
Bird & Bird (Helsinki)
In two judgments that are of pan-European interest because of their relevance to the interpretation of the EU competition Damages Directive, the Finnish Supreme Court and the Belgian Constitutional Court ruled on limitation periods to bring competition damages claims. The Finnish Supreme (...)

The German Competition Authority fines a manufacturer of railway sleepers € 1.5 million for an anticompetitive agreement concerning public procurement (Durtrack)
German Competition Authority (Bonn)
Bundeskartellamt concludes proceedings against manufacturers of railway sleepers* The Bundeskartellamt has concluded its investigation proceedings against manufacturers of concrete and wooden railway sleepers and imposed a fine on one manufacturer of concrete railway sleepers. The (...)

The Bulgarian Competition Authority publishes the result of an inquiry and opens proceedings regarding possible price-fixing cartels and abuse of dominance in the fuel sector (Lukoil)
Mondelez (Sofia)
On February 25, 2016 the Commission for Protection of Competition (CPC) in Bulgaria has published its Conclusion of the sector inquiry on the Bulgarian market for the manufacture and sale of petrol and diesel fuels. The sector inquiry was initiated the middle of 2015 as doubts occurred that (...)

The Italian Competition Authority fines two trade associations and several local cooperative banks for fixing mortgage interest rates
Municipality of Cagliari
The Italian Competition Authority (ICA) has recently closed an antitrust investigation in the ‘Mortgage interest rates agreement’ case by finding guilty two cooperative trade associations and 14 small cooperative banks for carrying out two price-fixing agreements in the province of Bolzano (...)

The EU Commission opens a preliminary antitrust investigation concerning possible collusion in the money transfer market (Western Union)
Simmons & Simmons (London)
,
Agoda
In February 2016, it was reported that the European Commission is undertaking a preliminary antitrust investigation in relation to possible collusion in the money transfer market, continuing the trend of the Commission focussing on the financial sector in recent years. Focus of the (...)

The EU Commission opens a preliminary investigation concerning possible collusion in the money transfer market (Western Union)
Phillips Auctioneers (London)
,
Constantine Cannon (London)
EU telegraphs it is probing whether Western Union colluded to drive rivals out of money-transfer market*The European Commission has reportedly launched a preliminary antitrust investigation into possible collusion by Western Union in the money remittance market.According to sources, the (...)

The Belgian Competition Authority adopts its second settlement decision in an industrial battery cartel case (Battery manufacturers)
Van Bael & Bellis (Brussels)
On 23 February 2016, the College of Competition Prosecutors (the “Competition College”) of the Belgian Competition Authority adopted its second settlement decision involving six battery manufacturers (Battery Supplies, Celecric, Emrol, Enersys, Exide Technologies and Hoppecke) on account of (...)

The Belgian Competition Authority fines 6 undertakings for price-fixing agreement in the sector of industrial batteries (Emrol)
Belgian Competition Authority (Brussels)
The Belgian Competition Authority imposes fines amounting to 3.857.000 EUR for price-fixing in the sector of industrial batteries* The Investigation and Prosecution Service of the Belgian Competition Authority sanctions 6 companies for price-fixing by applying an agreed lead surcharge to the (...)

The US Court of Appeals for the First Circuit concludes that a reverse payment need not be in cash (Loestrin)
Crowell & Moring (New York)
First Circuit boosts antitrust challenges to pay-for-delay settlements by finding non-cash deals subject to Actavis scrutiny*Antitrust challenges to so-called “pay-for-delay” settlements—in which brand-name drug makers temporarily keep generics out of the market by making payments to would-be (...)

The US Court of Appeals for the First Circuit concludes that a reverse payment need not be in cash (Loestrin)
Rutgers University (New Brunswick)
On February 22, 2016, in the second federal appellate drug patent settlement ruling since the Supreme Court’s decision in FTC v. Actavis, 133 S. Ct. 2223 (2013), the U.S. Court of Appeals for the First Circuit vacated a lower court decision granting a motion to dismiss for defendants. Writing (...)

The US FTC urges the Court of Appeals for the First Circuit to hold that a reverse payment need not be in cash (Loestrin)
DLA Piper Weiss-Tessbach (Vienna)
U.S. FTC urges the Appeals Court to revive the Loestrin Suit* On December 7, 2015, during oral argument, the U.S. FTC urged the Court of Appeals for the First Circuit to revive the Loestrin suit. The case concerns a so-called reverse payment settlement. In 2009 Watson Pharmaceuticals (...)

The French Competition Authority launches unannounced inspections in the market of fire safety systems equipping businesses and buildings receiving the public
French Competition Authority (Paris)
Fire safety systems equipping businesses and buildings receiving the public* The General Rapporteur of the Autorité de la concurrence states that unannounced inspections were carried out on February 18th in the sector of fire safety systems equipping businesses and buildings receiving the (...)

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 (...)

The EU Commission launches a market test on commitments offered by container liner shipping companies (CMA CGM)
European Commission - DG COMP (Brussels)
Antitrust: Commission seeks feedback on commitments offered by container liner shipping companies* The European Commission is inviting comments from interested parties on commitments offered by fifteen container liner shipping companies to address concerns relating to concerted practices. (...)

The Croatian Competition Authority closes its procedure concerning an alleged resale price maintenance in the market of the distributors of motorcycles and scooters (Piaggio Hrvatska)
Croatian Competition Agency (Zagreb)
No infringement of competition rules for Piaggio Hrvatska* Neither direct nor indirect evidence was found in the proceeding that was conducted against the undertaking Piaggio Hrvatska based on the alleged resale price maintenance provisions in the vertical agreements with its buyers. In (...)

The UK Competition Authority fines £45 million to several pharmaceutical companies for pay-for-delay settlements (GlaxoSmithKline)
UK Competition & Markets Authority - CMA (London)
CMA fines pharma companies £45 million* The CMA has fined a number of pharmaceutical companies for anti-competitive conduct and agreements in relation to the supply of paroxetine. The CMA’s decision relates to conduct and agreements between 2001 and 2004 in which GlaxoSmithKline plc (GSK), (...)

The UK Competition Authority fines pharmaceutical companies for pay-for-delay deals (GlaxoSmithKline)
Constantine Cannon (London)
,
Alston & Bird (London)
UK Antitrust Watchdog slaps $65 million fine on Pharma Companies in UK’s first pay-for-delay case* On 12 February 2016, the Competition and Markets Authority (“CMA”), UK’s competition regulator, fined a number of pharma companies for anti-competitive conduct and agreements in relation to the (...)

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 (...)

Unilateral Practices

The Portuguese Competition Authority renders binding commitments proposed by car manufacturer regarding motor vehicle warranties (Fiat)
Portuguese Competition Authority (Lisbon)
The PCA adopts a decision which renders legally binding the commitments offered by Fiat regarding motor vehicle warranties* The Portuguese Competition Authority (PCA) adopted a decision which renders legally binding the commitments offered by FCA Portugal, S.A., in relation to Fiat brands (...)

The Indian Competition Authority exonerates television audience measurement agency from allegations of abuse of dominance due to lack of dominance in the relevant markets (Prasar Bharati / TAM Media Research)
Vaish Associates Advocates (New Delhi)
CCI closes case against television audience measurement services agency* CCI by its order dated February 25, 2016 has closed a case alleging abuse of dominant position by the television audience measurement services agency, TAM Media Research Private Limited, in relation to the procedure (...)

The UK High Court throws out a private claim for damages based on abuse of dominance in the online mapping sector (Streetmap / Google)
Phillips Auctioneers (London)
,
Constantine Cannon (London)
Google wins court battle against StreetMap in the UK*Google won a big victory Friday in the High Court of England and Wales, which ruled that Google did not abuse its dominant position to the detriment of the now-defunct UK online mapping provider, Streetmap.The Court’s ruling against (...)

The UK High Court dismisses a claim for abuse of dominance brought against a Big Tech firm by an online map provider and holds that an alleged harmful effect of a pro-competitive innovation by a dominant company must be significant in the market to constitute an abuse (Streetmap / Google)
Osborne Clarke (London)
Brief summary of facts Streetmap alleged that Google abused its dominant position in the online search and/or online search advertising markets by bundling Google Search with Google Maps, thereby depriving users of an undistorted choice of online mapping services; giving Google Maps an (...)

The Indian Competition Authority opens investigation into abuse of dominance by global hybrid seeds manufacturer through its alleged excessive royalties (Ministry of Agriculture & Farmers Welfare / Mahyco Monsanto Biotech)
Vaish Associates Advocates (New Delhi)
CCI to investigate global hybrid seeds giant Monsanto for abuse of dominance in relation to excessive royalties for Bt cotton seeds* CCI by its majority order dated February 10, 2016 has initiated a detailed investigation into the allegedly excessive royalty fee charged by Monsanto, Inc. (...)

Mergers

The French Competition Authority clears a merger, subject to remedies, in the market of retail of cultural and electronic products (Fnac / Darty)
French Competition Authority (Paris)
RETAILING OF "BROWN" AND "GREY" PRODUCTS* The Autorité de la concurrence clears, subject to the divestiture of 6 stores in Paris and the Parisian region, the acquisition of the Darty company by the Fnac group On 17 February 2016, the Fnac group notified its project to take over Darty to (...)

The Croatian Competition Authority clears a merger in the car manufacturing sector (Frey / Peugeot / Citroen)
Croatian Competition Agency (Zagreb)
Frey Automobil takes over Peugeot Hrvatska and Citroen Hrvatska* The Croatian Competition Agency (CCA) deemed compatible the concentration on the basis of which Frey Automobil acquires control over the undertakings Peugeot Hrvatska and Citroen Hrvatska. The acquisition of Peugeot Hrvatska (...)

The EU Commission opens an in-depth investigation concerning a merger in the satellite and launch service markets (Arianespace / Airbus Safran Launchers)
European Commission - DG COMP (Brussels)
MERGERS: COMMISSION OPENS IN-DEPTH INVESTIGATION INTO ASL’S ACQUISITION OF ARIANESPACE* The European Commission has opened an in-depth investigation to assess the proposed acquisition of Arianespace by Airbus Safran Launchers (ASL) under the EU Merger Regulation. The Commission has (...)

The EU Commission clears a merger, subject to remedies, in the market of consumable dental products for professional dental (Dentsply / Sirona)
European Commission - DG COMP (Brussels)
MERGERS: COMMISSION APPROVES DENTSPLY ACQUISITION OF DENTAL EQUIPMENT SUPPLIER SIRONA, SUBJECT TO CONDITIONS * The European Commission has approved under the EU Merger Regulation the proposed acquisition of dental equipment supplier Sirona by Dentsply, both of the US, subject to conditions. (...)

The Indian Competition Authority clears a merger in the real estate sector (Gigaplex / Raheja)
Shardul Amarchand Mangaldas (Mumbai)
,
Economic Laws Practice (Mumbai)
Introduction A notification was jointly filed by Mindspace Business Parks Private Limited (“Mindspace”), K. Raheja Corp Private Limited (“KRC”), Trion Properties Private Limited (“Trion”), Gigaplex Estate Private Limited (“Gigaplex”) and Newfound Properties and Leasing Private Limited (...)

The Indian Competition Authority fines electricity company for failing to notify acquisition within required deadline (General Electric)
Vaish Associates Advocates (New Delhi)
CCI penalizes General Electric (GE) for failure to notify its proposed acquisition of equity stakes in Alstom* CCI by its order dated February 16, 2016 has penalized GE Energy Europe B.V., GE and GE Industrial France SAS (collectively, the “Acquirers”) for failure to notify a proposed (...)

The Indian Competition Authority of India fines an undertaking for failing to notify a merger within 30 days of the trigger date (GE)
Shardul Amarchand Mangaldas (New Delhi)
,
Shardul Amarchand Mangaldas (New Delhi)
,
Shardul Amarchand Mangaldas (New Delhi)
The Competition Commission of India (CCI) has recently imposed a penalty of INR 5 crores (approximately USD 750,000) on GE for its failure to notify the proposed acquisition of Alstom companies within 30 days of the trigger date. The penalty imposed on GE is the highest penalty for late (...)

The Indian CCI imposes a record fine for late merger filing in India (GE)
Baker McKenzie (London)
Record fine for late filing in India: Time to set the deadline for reform?* India’s competition authority (the CCI) imposed a record-breaking fine of US$750,000 (50 million rupees) on General Electric (GE) earlier this year for failing to notify its tie-up with Alstom S.A. within the (...)

The Dutch Industry Appeals Tribunal annuls decision blocking bakery merger (Continental Bakeries / A.A. ter Beek)
Van Bael & Bellis (Brussels)
On 11 February 2016, the Dutch Industry Appeals Tribunal (the “Tribunal”), the administrative court of last instance in competition law matters, annulled the decision of the Dutch Competition Authority (“DCA”) prohibiting the merger between Continental Bakeries and A.A. ter Beek. The Tribunal (...)

The EU Commission clears the acquisition subject to conditions of global office supplies company by its leading competitor but it is subsequently rejected by US FTC (Staples / Office Depot)
European Commission - DG ENER (Brussels)
,
European Commission - DG COMP (Brussels)
,
European Commission - DG COMP (Brussels)
Staples/Office Depot: House of Paper* In a nutshell: In February this year, the European Commission approved the acquisition of Office Depot by Staples. Three months later, the US District Court for the District of Columbia granted the FTC’s request for a preliminary injunction to block the (...)

The Indian Competition Authority unconditionally approves an acquisition of 49.86% stake in a gas company by investors who already had 50% stake (Gujarat State Petroleum / Gujarat State Petronet / Bharat Petroleum / SBL Sabarmati Gas)
Vaish Associates Advocates (New Delhi)
CCI approves acquisition of 49.86% stake in Sabarmati Gas Limited (SGL) by PSU petroleum companies* CCI, by its order dated February 10, 2016, has approved acquisition of 49.86% stake in SGL by Gujarat State Petroleum Corporation Limited (“GSPC”); Gujarat State Petronet Limited (“GSPL”); and (...)

The EU Commission clears a merger subject to remedies in the office supplies market (Staples / Office Depot)
European Commission - DG COMP (Brussels)
Mergers: Commission approves Staples’ acquisition of Office Depot, subject to conditions* Following an in-depth review, the European Commission has approved under the EU Merger Regulation the acquisition of office supplies distributor Office Depot by Staples, subject to conditions. (...)

The Turkish Competition Authority unconditionally clears an acquisition in the market for data memory systems (Western Digital / SanDisk)
Ankara Hacı Bayram Veli University (Ankara)
This case note analyses the decision of the Turkish Competition Authority (TCA) in which it has unconditionally cleared in Phase I the acquisition of the sole control of SanDisk by Western Digital in the market for data memory systems. The Operation On 4 December 2015, the TCA received a (...)

The EU Commission approves the acquisition of a mobile network operator by a virtual mobile network operator, subject to fix-it-first remedies (Liberty Global / BASE)
European Commission - DG COMP (Brussels)
,
University of Tokyo
LIBERTY GLOBAL / BASE: FIWING IT FIRST IN THE BELGIAN MOBILE MARKET* In a nutshell: Liberty Global/BASE entailed the acquisition of a mobile network operator by a mobile virtual network operator. The transaction prompted an in-depth investigation and was ultimately cleared with a (...)

The EU Commission conditionally approves a merger in the telecommunications sector (Liberty Global / BASE)
Van Bael & Bellis (Brussels)
On 4 February 2016, the European Commission conditionally approved the acquisition of Belgian mobile network operator (“MNO”) BASE by Liberty Global, which controls the Belgian telecommunications operator and mobile virtual network operator (“MVNO”) Telenet. Telenet has a significant position (...)

The Serbian Parliament issues a decree on merger notification
BDK Advokati (Belgrade)
A new decree on the content of merger notification (“Merger Decree“) is effective in Serbia from today, 2 February 2016. Our readers may remember that we blogged on this topic when the draft decree was out for comments. Templates for both long-form and short-form merger notifications are (...)

The French Competition Authority clears a merger concerning several retail markets (Charentes Alliance / Coréa cooperatives)
French Competition Authority (Paris)
AUTORITÉ DE LA CONCURRENCE AUTHORISES THE MERGER BETWEEN THE CHARENTES ALLIANCE AND CORÉA COOPERATIVES* On December 23rd 2015, the Charentes Alliance and Coréa cooperatives notified the Autorité that their organisations were planning to merge. Having undertaken a detailed analysis of the (...)

State Aid

The EU Commission finds that an exemption from an electricity fee granted by Lithuania is compatible with the Regional Aid Guidelines (Regional aid scheme for the promotion of the development of strategic ICT projects)
Maastricht University
Article published on StateAidHub: http://stateaidhub.eu, republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

The Lisbon Court of Appeal delivers judgement on the execution of state aid recovery (Banco Privado Portugues)
Morais Leitão, Galvão Teles, Soares da Silva (Lisbon)
,
Morais Leitão, Galvão Teles, Soares da Silva (Lisbon)
Background and facts of the case In the context of the judicial liquidation process of the Portuguese bank Banco Privado Português, S.A. (“BPP”), the creditors filed an appeal before the Lisbon Court of Appeal against the final decision, in which certain credits were judged to be recognized (...)

The Italian Court of Rome recalculates the correct amount of ’State aid’ to be recovered as zero and orders the State to repay undertakings the ’aid’ that has already been recovered (Mediaset)
BonelliErede (Brussels)
,
Luiss Guido Carli University (Rome)
,
BonelliErede (Brussels)
On 11 February 2016, the Court of Rome annulled the recovery order issued to Mediaset concerning unlawful aid it received and recalculated the aid amount at zero. Background & facts of the case The decision under review originates from a request for a preliminary ruling submitted by (...)

The Supreme Administrative Court of Austria holds that the benefit of a provision which is contrary to the freedom of establishment because it favours nationals can be extended to foreigners since it does not constitute state aid (IFN-Holding AG)
University of Vienna
Background & Facts of the case The main proceedings concerned the corporation tax levied on CEE Holding GmbH and its successor in title, IFN-Holding AG, for the years 2006 to 2010. In those years, the two companies were members of a tax group within the meaning of § 9 of the (...)

The EU Commission finds that a German local infrastructure renewal scheme does not constitute State aid (Village renewal and infrastructure projects in rural areas)
Maastricht University
* Article published on StateAidHub: http://stateaidhub.eu, republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

Procedures

The Supreme Court of British Columbia denies disclosure based on public interest privilege (Pro-Sys / Microsoft)
Conzen O’Connor (Toronto)
Documents and information that the Competition Bureau collects from third parties during its investigations are protected by public interest privilege from disclosure to plaintiffs in private actions, the BC Supreme Court has ruled. The plaintiffs in a class action alleging that Microsoft (...)

The Portuguese Supreme Court dismisses a contractual dispute and determines that the Irish courts are the appropriate forum for the litigation
Morais Leitão, Galvão Teles, Soares da Silva (Lisbon)
Brief summary of facts In 2012, AA. and BB, a former distributor and retailer of CC’s products, respectively, filed an action in Portugal against CC seeking damages for alleged competition law breaches under Article 102 TFEU and equivalent national provision of the Portuguese Competition (...)

The French Competition Authority launches an inquiry in the hearing aid retail sector
French Competition Authority (Paris)
The Autorité de la concurrence shall begin, at its own initiative, gathering information in order to assess the state of competition within in the hearing aid retail sector, before publishing any recommendations it considers necessary in order to improve the situation.* Having observed low (...)

The Chinese National Development and Reform Commission releases draft antitrust guidelines on leniency and commitments for public comment
University of Melbourne
,
China Competition Bulletin (Beijing)
,
Hogan Lovells (Beijing)
On 2 February 2016, the NDRC released both the draft Guideline on the Application of Leniency in Cases Involving Horizontal Monopoly Agreements (draft leniency guideline) and the draft Guideline on Commitments in Anti-Monopoly Cases (draft commitment guideline) for public comment. The public (...)

Regulatory

The French Competition Authority launches a public consultation in the context of the drafting of an opinion on the freedom of establishment of notaries, bailiffs and judicial auctioneers
French Competition Authority (Paris)
Notaries, bailiffs and judicial auctioneers* In application of the "Macron law", the Autorité de la concurrence is launching a public consultation in the context of the drafting of an opinion on the freedom of establishment of notaries, bailiffs and judicial auctioneers. This opinion will (...)

The French Competition Authority issues three opinions regarding the ways in which driver licence tests are organized
French Competition Authority (Paris)
The Autorité publishes three opinions regarding the ways in which driver licence tests are organized. * In particular, the Autorité has expressed a mitigated opinion over the methods used to allocate test places among driving schools. The Autorité de la concurrence today publishes three (...)

The French Competition Authority issues its two opinions following publication of the decree on the tariffs of certain law professionals
French Competition Authority (Paris)
The Autorité de la concurrence publishes the opinions it issued to the government following yesterday’s publication of the decree on the rates of certain law professionals.* Following publication in the Official Journal of the French Republic (JORF) of 28 February 2016 of Decree 2016-230 of (...)

The US Committee on Foreign Investment publishes its annual report and reviews several national security aspects of the increasing number of acquisitions by Asian companies
Freshfields Bruckhaus Deringer (Washington)
,
Freshfields Bruckhaus Deringer (Washington)
Parties to transactions that might implicate US national security interests may elect voluntarily to submit a notification to the Committee on Foreign Investment in the United States (CFIUS), the multi-agency committee charged with conducting national security reviews of acquisitions by (...)

The French Competition Authority publishes a report and an opinion concerning the energy sector
French Competition Authority (Paris)
The Autorité has published its evaluation report on the legal mechanism providing regulated access to incumbent nuclear electricity (hereinafter ARENH), and an opinion on the decree concerning regulated sales tariffs (hereinafter TRVs), as well as two opinions on plans to phase out TRVs on (...)

The Latvian Competition Authority exposes competition restrictions within the taxi service market
Latvian Competition Council (Riga)
The CC points at Competition Restrictions within the Taxi Service Market* The Competition Council (CC) of Latvia repeatedly calls for the Riga City Council to ensure principles of the fair competition within its regulation of providing the taxi services in the Old Town of the capital of (...)