January 2008

Anticompetitive practices

A French Court rules that unfair competition may exist when distance selling companies competing on another Member State’s market do not charge the same VAT rate as applied on such market (Pneus-Online Suisse & Pneus-Online / Delticom)
Google (Paris)
A German and a Swiss firm were competing on the online tyres market in France. They were using very close domain names. One applied the VAT rate of the country of origin, the other one the VAT rate applicable in France. A French court of appeals finds that this constitutes unfair competition. (...)

The Belgian Competition Council bans a price-coordination mechanism in the retail bakery markets (VEBIC)
European University Institute (Florence)
Pharumlegal (Brussels)
I. Parties VEBIC is a professional association which comprises as its members all the Flemish provincial associations of bakers. Amongst the various activities it carries out on their behalf, VEBIC publishes a magazine entitled “Passie”. II. Facts Until 1 July 2004, the price of breads (...)

A Scottish Court rules on non-compete obligation and post-term restriction in gas distribution contract (Calor Gas Limited)
Van Bael & Bellis (Brussels)
On 25 January 2008, a Scottish Court issued a ruling concerning certain allegedly anti-competitive clauses contained in a contract concluded between Calor Gas Limited (“Calor”), a supplier of liquefied petroleum gas (“LPG”), and its distributors of cylinder LPG. This judgment focused its (...)

The Belgian Competition Council issues first fine under the 2006 Competition Act for recommended prices (VEBIC)
Sheppard Mullin (Brussels)
Adyen (Amsterdam)
The Belgian Competition Council has fined Vebic Euro 29,121 for an infringement of Article 2 of the Belgian Competition Act, the Belgian equivalent of Article 81 EC. The association (whose members are producers and retailers of bakery products) was condemned by the Competition Council for (...)

The Belgian Competition Council fines EUR 29,000 a professional association for the publication of a price index (VEBIC)
Autorité de la concurrence (Paris)
Oxera (Brussels)
Introduction On 25 of January 2008, the Belgian Competition Council fined the Flemish Association of Bakeries (hereafter “VEBIC”) € 29,000 for the publication of a bread price index and a cost scheme in violation to article 2 paragraph 1 of the new WBEM . The Competition Council argues that (...)

The Turkish Competition Authority adopts block exemption guidelines on technology transfer agreements on the basis of EC Reg. N° 772/2004
Erdem & Erdem (Istanbul)
The Turkish Competition Authority (hereinafter referred as “Authority”) has recently adopted a communiqué entitled as “Communiqué on the Block Exemption Related to the Technology Transfer Agreements” (hereinafter referred as “Communiqué”) numbered 2008/2 on the basis of the European Commission (...)

The EU Commission imposes fines against manufacturers in the synthetic rubber cartel cases (Bayer / Zeon)
European Commission - DG COMP (Brussels)
European Commission - DG TRADE (Brussels)
The synthetic rubber cartel cases I. The Nitrile Butadiene Rubber Case On 23 January, the Commission adopted a prohibition decision and imposed fines totalling €34 million on the Bayer and Zeon groups for operating a cartel in the Nitrile Butadiene Rubber (‘NBR’) sector. The addressees of (...)

The Slovak Competition Authority fines gas insulated switchgear cartel and applies leniency rules for the first time (ABB Group / Schneider Electric)
Van Bael & Bellis (Brussels)
On 21 January 2008, the Slovak Antimonopoly Office imposed a fine of SKK 350 million (approximately € 10 million) on sixteen companies from Austria, Germany, the Switzerland, France, Italy, the United Kingdom and Japan for participating in a cartel for gas insulated switchgear (GIS). The (...)

The Cypriot Supreme Court refuses a referral to the EU Court of Justice (Netmed)
Elias Neocleous (Limassol)
The present Recourse was lodged by the Applicants before the Supreme Court of Cyprus, requesting the Court to annul the decision of the Cyprus Commission for the Protection of Competition which concerned the imposition of an administrative fine of (CYP£130.000) Euros €222.118.18. Factual (...)

The Estonian Competition Authority ends proceedings against two oil tanking terminal operators without finding existence of anticompetitive agreements (Oiltanking Tallinn / Alexela Terminal)
EFTA Surveillance Authority (Brussels)
Introduction On 17 January 2008 the Estonian Competition Authority (hereinafter: Authority) made a decision in two cases that were initiated in connection with a dispute between majority and minority shareholders (Alexela Terminal, AT) of Oiltanking Tallinn (OTT), a company providing oil (...)

The Portuguese Competition Authority adopts a new decision concerning a cartel of pharmaceutical companies following a decision of the Lisbon Commercial Court (Abbot, Bayer, Johnson & Johnson, Menarini)
Luís Silva Morais (Lisbon)
On 17 January 2008 the Portuguese Competition Authority (hereinafter ‘CA’) has approved a new decision concerning two previous cases, which have now been appended, and referring to two cartels on the pharmaceutical sector involving the companies Abbott, Bayer, Menarini and Johnson & (...)

The Japanese FTC imposes surcharges on participants in bidding for the supply of petroleum products (Nippon Oil, Cosmo Oil and Showa Shell Sekiyu)
Japan Fair Trade Commission (Tokyo)
Surcharge Payment Order against Suppliers of Petroleum Products Ordered by the Defense Agency’s Central Procurement Office (the present Equipment Procurement and Construction Office)* On January 16, 2008, the Japan Fair Trade Commission (JFTC) issued surcharge payment orders against three (...)

The Higher Regional Court of Düsseldorf holds that exclusive purchase obligations contained in franchise agreements are not necessarily prohibited as unfair hindrances, even though they cover the whole assortment of goods (Baumarkt)
Gleiss Lutz (Munich)
Milbank (Munich)
On 16 January 2008 the Higher Regional Court of Düsseldorf issued a decision on questions concerning the German prohibition of unfair hindrance, Sec. 20(1) of the German Act against Restraints on Competition (ARC). The questions arose in administrative proceedings by the German Federal Cartel (...)

The Paris Court of Appeal overturns the French Competition Council decision fining construction firms for bid-rigging (Devin Lemarchand Environnement / Dehe TP)
Autorité de la concurrence (Paris)
On 15 January 2008, the Paris Court of Appeal overturned decision n° 07-D-01 of the French Competition Council (the "Council") regarding practices in the market for public water supply networks in the department of Morbihan. The Council had fined three construction firms, Dehe TP, Devin (...)

The Strasbourg Court of First Instance rules that parallel resales do constitute an act of unfair competition (Puma / France Telecom / Brandalley / Vanam)
EDHEC (Lille)
France Telecom, Brandvalley and Vanam companies have been sued in France by Puma France Company for distributing Puma brand products on a website, whereas they weren’t members of the Puma distribution system. Puma France filed a claim to the Strasbourg Court of First Instance for emergency (...)

Unilateral Practices

The Italian Administrative Tribunal rejects appeals regarding margin squeeze in the national telecoms market (Telecom Italia / Wind)
Van Bael & Bellis (Brussels)
Practising Law Institute (New York)
In a recently published judgment of 23 January 2008, the Lazio Administrative Tribunal (“LAT”) has rejected the appeals brought by Telecom Italia and Wind against the decision of the Italian Competition Authority (“ICA”) finding that Telecom and Wind had abused their respective dominant (...)

The Luxembourg Competition Authority adopts the first conservatory measures against the telecommunications incumbent regarding alleged abusive bundling of fixed-line telephone, mobile telephone and high-speed Internet access (Entreprise des Postes et Télécommunications)
Bonn & Schmitt (Luxembourg)
On 22 January 2008, the President of the Competition Council (Council) handed down an 83-pages decision, for the first time after the law of 17 May 2004 on competition (Law on competition) came into force, imposing a limited number of conservatory measures on the public entity Entreprise des (...)

The EU Commission closes its investigation into an online music distributor with UK price cut (iTunes)
Van Bael & Bellis (Brussels)
On 9 January 2008, the European Commission announced that it has dropped its antitrust investigation into Apple after the US technology company agreed to lower the prices it charges for music downloads from its UK iTunes online music store within six months. This move by Apple will standardize (...)

The Bulgarian Supreme Administrative Court upholds the Competition Authority’s decision sanctioning the telecom incumbent for exerting margin squeeze on its competitors in the markets for fixed telephone services (Bulgarian Telecommunication Company)
Dessislava Fessenko (London)
On 9 January 2008, the Supreme Administrative Court (the “SAC”) handed down a final judgment. in a dispute between the local telecom incumbent - Bulgarian Telecommunication Company AD (“BTC”) and the Bulgarian Commission for Protection of Competition (the “CPC”) concerning an alleged margin (...)

The Turkish Competition Authority orders termination of loyalty-enhancing bonus schemes with travel agents (Amadeus)
University of Leeds
The Turkish Competition Board (TCB) has ordered Amadeus Reservation Distribution Systems Co (Amadeus) to terminate the use of a contract clause regarding loyalty-enhancing bonus schemes found in agreements with certain travel agents. According to the contract clause, the travel agents had to (...)


The Icelandic Competition Authority clears a joint venture in the credit card sector subject to remedies, including conditions on board membership and the exchange of information (Kaupthing / Einkaklubburinn-Ekort)
PwC (Reykjavik)
The operation On 24 September 2007, Kaupthing bank notified the Icelandic Competition Authority (ICA) of its proposed acquisition from SPRON bank of 49% of the share capital of Einkaklubburinn ehf (now Ekort). The agreement between SPRON and Kaupthing was structured to lead to Kaupthing (...)

The Turkish Competition Authority clears a merger in the wholesale of commodity polymers market subject to limitation of the non-competition clause (NTC - Itochu Holland)
Esin (Istanbul)
The operation Itochu was established in Japan. Itochu is the parent company of Itochu Group which is active in various business lines all over the world. Main activity fields of Itochu Group are textile, machinery, automotive, aviation, energy, metal and minerals, chemicals, food and (...)

The EU Commission initiates infringement proceedings against Spain for not lifting conditions imposed on a transaction approved by the Commission (Enel / Acciona / Endesa)
Van Bael & Bellis (Brussels)
On 31 January 2008, the European Commission announced that it has initiated infringement proceedings under Article 226 EC against Spain for failing to lift restrictions imposed by the Spanish National Energy Commission (CNE) on the Enel/Acciona/Endesa transaction. The acquisition by Enel and (...)

The EU Commission approves acquisition in the petrochemicals sector after in-depth investigation of the relevant geographic market (Ineos / Kerling)
European Commission - DG COMP (Brussels)
European Commission - DG COMP (Brussels)
European Commission
"Ineos/Kerling: Raising the standard for geographic market definition?"* On 30 January 2008, following an in-depth investigation, the Commission approved the acquisition of Kerling ASA (‘Kerling‘) - the polymer division of the Norwegian company Norsk Hydro - by the UK-based INEOS Group (...)

The EU Commission clears an acquisition in the production of PVC (Ineos / Kerling)
JG Associates (Brussels)
European Commission - DG COMP (Brussels)
"Mergers: main developments between 1 January and 30 April 2008"* On 30 January the Commission approved the proposed acquisition of Kerling, the polymer division of the Norwegian company Norsk Hydro group, by the UK-based company Ineos. Both companies are active, inter alia,in the production (...)

The UK Secretary of State for Business, Enterprise & Regulatory Reform acts in accordance with the recommendations of the UK Competition Commission, thus requiring the partial divestment of remedies in a TV broadcasting investment case (BSkyB / ITV)
NERA (London)
The operation British Sky Broadcasting Group plc (BSkyB) is a holding company for subsidiaries that operate principally in activities relating to television broadcasting and retailing in the UK and Ireland (for example, direct-to-home pay subscription satellite television). BSkyB is also (...)

The French Minister of Economy imposes a moderate fine for failure to notify a merger (SNCF Participations)
Freshfields Bruckhaus Deringer (Paris)
Fiducial Legal by Lamy
On 28 January 2008 the Minister of Economy (the Minister) imposed a fine of 250,000 euros on SNCF Participations (SNCF P), a subsidiary of the SNCF group, in relation to the failure to notify the acquisition of sole control of Novatrans, a company operating in the market relating to the (...)

The French Directorate for Competition clears an acquisition in the press and media sector, subject to conditions addressing conglomerate concerns (LVMH / Les Echos)
Van Bael & Bellis (Brussels)
On 25 January 2008, the French Directorate for Competition, Consumption and Combating Fraud (DGCCRF) published two decisions conditionally clearing separate transactions in the press and media sector. The first decision concerned the acquisition of the French financial daily newspaper Les (...)

The French Directorate for Competition clears an acquisition in the press and media sector, subject to conditions addressing conglomerate concerns (Hersant Média Group, Lagardère)
Van Bael & Bellis (Brussels)
On 25 January 2008, the French Directorate for Competition, Consumption and Combating Fraud (DGCCRF) published two decisions conditionally clearing separate transactions in the press and media sector. The second decision concerned the acquisition by Hersant Média Group (HMG) of several (...)

The EU Commission approves an acquisition in the copper production sector (Norddeutsche Affinerie / Cumerio)
JG Associates (Brussels)
European Commission - DG COMP (Brussels)
"Mergers: main developments between 1 January and 30 April 2008"* On 23 January the Commission approved the proposed acquisition of sole control of Cumerio SA of Belgium by Norddeutsche Affinerie AG (NA) of Germany. Both companies are active at several stages of the copper processing chain, (...)

The Austrian Supreme Court dismisses an application for review of a concentration due to lack of a change of control (Moser Holding)
Reidlinger Schatzmann Rechtsanwälte (Vienna)
DORDA (Wien)
On 21 January 2007, the Austrian Supreme Court dismissed an appeal by the Federal Competition Authority against a decision by the Cartel Court dismissing the Authority’s application for review of a concentration. The case at issue involved Moser Holding, an undertaking active in the press (...)

The UK’s OFT unconditionally clears a merger in the airline sector concluding that evidence of new market entry can mitigate high market shares (easyJet / GB Airways)
Herbert Smith Freehills (Brussels)
On 18 January 2008, the UK’s Office of Fair Trading (“OFT”) announced that it had cleared unconditionally the purchase of GB Airways Limited (“GB Airways”) by easyJet Airline Company Limited (“easyJet”). The OFT focused on relatively narrowly defined markets, considering scheduled flights (...)

The US FTC announces revised jurisdictional thresholds for § 8 and § 7A of the Clayton Act
White & Case (London)
White & Case (Washington)
White & Case (Washington)
Introduction Businesses planning equity investments or M&A activity should take note of recent US antitrust developments regarding pre-merger notifications. On February 28, 2008, revised Hart-Scott-Rodino Act (“HSR”) jurisdictional thresholds took effect. (Press Release, Federal Trade (...)

The Italian Competition Authority clears a merger between banking groups with structural remedies (Intesa Sanpaolo / Cassa Di Risparmio Di Firenze)
Chiomenti (Rome)
The operation Intesa Sanpaolo S.p.A (ISP) and Cassa di Risparmio Firenze S.p.A. (CRF) are two Italian banking groups operating also in the financial and insurance sectors. ISP proposed the acquisition of full control of CRF through a share exchange transaction. The market(s) The (...)

The Italian Competition Authority clears a large banking merger, subject to structural remedies (Intesa Sanpaolo / Cassa di Risparmio di Firenze)
Municipality of Cagliari
On 17 January 2008 the Italian Competition Authority (ICA) has conditionally authorised a concentration between two large Italian banking groups by requiring them to divest a number of branches and their stake in Agos, a consumer credit operator. The merging parties The merging parties are (...)

The UK Competition Commission clears without remedies a merger leading to the largest retailer of video games in the UK (GAME/Gamestation)
RBB Economics (London)
RBB Economics (London)
In January 2008, the UK Competition Commission cleared the completed acquisition of Gamestation Limited (Gamestation) by GAME Group PLC (GAME), creating the largest retailer of video games in the UK through the combination of the only two national specialist retailers . The merger was approved (...)

The German Federal Court confirms a merger prohibition decision and the Court’s and NCA’s assesments of the hospital sector (Rhön-Klinikum / Rhön-Grabfeld)
Blomstein (Berlin)
Background In March 2005, the German Federal Cartel Office (FCO) for the first time blocked a hospital merger. The case concerned the acquisition of the district hospital in Bad Neustadt by Rhön-Klinikum AG , one of the largest privately held German hospital operators with more than 40 (...)

The Russian Competition Authority clears a merger in the aluminum cans and caps market with remedies, including an investment obligation of EUR 690 M in the target’s production facilities (Rostar-Vsevolzhsk / Rexam Beverage Can)
Clifford Chance (Moscow)
The operation The aluminium packaging manufacturer Rexam Beverage Can Holdings B.V. ("Acquirer") applied for clearance of the proposed acquisition of the entire voting capital of the aluminium can and cap manufacturers OOO "Rostar" and OOO "Rostar-Vsevolzhsk". ("Target") The market The (...)

An Italian administrative court holds a transfer of retail trade licences as concentration and fines an operator in grocery sector for breaching the pre-merger notification obligation (Lidl Italia)
Municipality of Cagliari
Introduction The Italian regional administrative court of Lazio (TAR) has upheld a decision of the Italian Competition Authority (ICA) that had categorized transfers of retail trade licences as concentrations. The TAR approved the condemnation of Lidl Italia (LI) for failing to notify the (...)

The EU Commission clears an acquisition of a Dutch chemical company by a US private equity firm (Arsenal Capital Partners / DSM Special Products)
JG Associates (Brussels)
European Commission - DG COMP (Brussels)
Mergers: main developments between 1 September and 31 December 2008* On 9 January the Commission cleared the proposed acquisition of chemical company DSM Special Products (DSP) of the Netherlands by Arsenal Capital Partners (Arsenal), a US private equity firm. Arsenal owns Velsicol, a (...)

The Estonian Competition Authority raises doubt on its discretion to initiate in-depth merger investigations (Terve Pere Apteek / Saku Apteek)
Triniti (Tallinn)
On 8 January 2008 the Director General of the Estonian Competition Authority (“ECA”) adopted a decision on the initiation of supplementary proceedings (so-called in-depth investigation) with respect to a concentration whereby Terve Pere Apteek OÜ (“TPA”) would acquire control over OÜ Saku (...)

The Polish competition authority grants merger clearance to a company close to attaining a dominant position in the national beer market (Kompania Piwowarska / Browar Belgia)
White & Case (Warsaw)
PwC (Warsaw)
This article discusses the OCCP’s decision approving a merger between Kompania Piwowarska and Browar Belgia (decision n° DKK - 5/08). The merger is the fourth of its kind in the industry within the last five years and the second where Kompania Piwowarska is an acquiring company. It is an (...)

The French Minister of Economy clears a merger in the sector of mobile telephony products and services, including divestiture and behavioural commitments (France Telecom / Compagnie Européenne de Télévision)
Paris Dauphine University
The operation By a letter dated 4 January 2008, the French Minister of Economy, Finance, and Employment authorised a merger between two compagnies specialised in photography and mobile telephony products and services : France Telecom SA and Compagnie Européenne de Téléphonie SA (para. 1.1) (...)

The Turkish Competition Authority clears a merger in the shopping malls real estate market subject to limitations of the non-competition clause duration (AVM / Mfi Arcaden)
Esin (Istanbul)
The operation Mfi Management für Immobilien AG, which is the parent company of Mfi Arcaden, is one of Germany’s leading management companies for the development and operation of downtown shopping arcades. It offers any relevant service across the entire real estate life cycle as a one-stop (...)

State Aid

The EU Commission adopts State aid guidelines for environmental protection
European Commission - DG COMP (Brussels)
European Commission - DG COMP (Brussels)
"Helping to combat climate change: new State aid guidelines for environmental protection"* In a bid to meet the ambitious environmental targets the EU has set itself in its quest to combat climate change, on 23 January 2008, the Commission tabled a series of legislative proposals for policy (...)

A Dutch Court of Appeals annuls the Competition’s Authority decision on the application of competition rules in the sphere of State aid (Blovo)
Urgenda (Basel)
Introduction In this case the Trade and Industry Appeals Tribunal of the Netherlands (Tribunal) made a principal judgement on the application of competition rules to behaviour that could be regarded as granting of State Aid. The Tribunal decided that qualification of behaviour as granting of (...)

The EU Commission launches a public consultation on the need to revise the Communication on public service broadcasting
Van Bael & Bellis (Brussels)
On 10 January 2008, the Commission launched a public consultation on the possible revision of the existing Commission Communication on the application of State aid rules to public service broadcasting. The current Communication was adopted in 2001 and its revision was foreseen in the State Aid (...)

The Spanish Supreme Court confirms the annulment of a provision which had not been included in the notification of a State aid scheme to the EU Commission (Eólica Navarra)
Hogan Lovells (Madrid)
Allianz (Brussels)
Factual Background: Appeal by the Government of Navarra against the judgement of the Superior Court of Justice of Navarra of 7 February 2005 (the "Appealed Judgment") annulling a provision of the regional Decree of Navarra 91/2003 on aids to investment and employment in projects of use of (...)


The European Commission imposes a € 38 M fine on electricity operator for breaking the Commission seals during an investigation (E.ON)
European Commission
European Anti-Fraud Office - OLAF (Brussels)
"The E.ON seals case - €38 million fine for tampering with Commission seals"* In January 2008, the Commission — making use of its new powers under Article 23(1) of Council Regulation (EC) No 1/2003 for the first time — imposed a fine of EUR 38 million on the German energy company, E.ON (...)

The Austrian Supreme Court raises up to € 120.000 a fine for breach of obligation to reply fully and in time to the NCA’s sector inquiry information request (Branchenuntersuchung Lebensmittelhandel)
European Court of Justice (Luxembourg)
By order of 21 January 2008 in Case 16 Ok 8/07, the Austrian Supreme Court in competition matters (Oberster Gerichtshof als Rekursgericht in Kartellrechtssachen) largely confirmed the order of 9 May 2007, Case 29 Kt 106, 107/06-23, of the Vienna High Court in competition matters (...)

The French Working Group on the de-penalization of business law in France takes steps towards de-penalization of anticompetitive practices (Coulon Report)
Innovate Finance (London)
On 20 January 2008, the working group on the de-penalization of business law in France, led by Jean-Marie Coulon, First Interimary President of the Paris Appeal Court, issued a report. This group was created on the request of the current French government which wished to re-organize the (...)

The Portuguese Commercial Court holds that in-house lawyers are covered by national rules on legal privilege (Unilever Jerónimo Martins)
SRS Advogados (Lisbon)
In a decision issued on 16 January 2008, the Commercial Court of Lisbon recognised that the protection of legal professional privilege applies to in-house lawyers and, in doing so, it rejected the argument of the Portuguese Competition Authority (PCA) that EU case law should apply to this (...)

The French Supreme Court acknowledges the boundaries of the transmission of information between criminal courts and the national competition authority (Colas Ile-de-France Normandie)
Innovate Finance (London)
I - Background Article L. 463-5 of the Commercial Code creates the possibility for the Competition Council to request documents closely linked to the facts referred to it and belonging to another national authority. The decision under examination is the last in this case and upholds the (...)

The Turkish Competition Authority adopts guidelines on certain subcontracting agreements between non-competitors
Erdem & Erdem (Istanbul)
The Turkish Competition Authority (hereinafter referred as "Authority") has recently adopted "Guidelines on Certain Subcontracting Agreements between Non-Competitors" (hereinafter referred as "Guideline"). Guideline is based on the European Commission Notice of 18 December 1978 concerning its (...)

The French Government enacts a law on the development of competition for the benefit of consumers (Chatel Act)
French Association for the Study of Competition AFEC (Paris)
I. Outline of the Act 1. Act n° 2008-3 of January 3rd, 2008 “on the development of competition for the benefit of consumers” (Journal Officiel of January 4th, 2008, p. 258), which is already being referred to as the “Chatel Act”, has two deliberately linked objectives: improving competition (...)

The German FCO establishes a new unit to supervise prices in the energy sector
Court of First Instance of Namur (Namur)
On 2 January 2008, the German Federal Cartel Office (FCO) established a new unit B10 which, jointly with the Cartel Offices of the German Länders, will be in charge of controlling whether gas and electricity are being set at appropriate prices. The new unit will have eight full-time members. (...)


The EU Commission launches sector inquiry into the pharmaceutical sector
European Commission - DG COMP (Brussels)
European Commission - DG CNECT (Brussels)
European Commission - DG COMP (Brussels)
"Commission launches sector inquiry into pharmaceuticals"* On 15 January 2008, the Commission initiated an inquiry into the pharmaceutical sector. As a first step, the Commission undertook unannounced inspections at the premises of a number of pharmaceutical companies in the EU. It was (...)