Search terms: Competition
In order to harmonise Albanian legislation with EU law, the Albanian Competition Authority has approved the Regulation on the Exemption of Research and Development (R&D) Agreement Categories. The regulation sets down the block exemption from applicable competition restrictions of agreements regarding the R&D of products or processes up to the stage of industrial application and exploitation of the results.
In order to harmonise Albanian legislation with EU law - and in particular with EU Regulation 1218/2010 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to certain categories of specialisation agreement - the Albanian Competition Authority has approved the Regulation on the Exemption of Specialisation Agreements.
During an investigation into the domestic procurement of auto vehicles, the Competition Authority discovered that several companies had established concerted anti-competitive practices. As a result, the authority imposed fines of between 2% and 10% of each company's turnover from the previous year. Additionally, it recommended the adoption of guidelines for the identification of future bid-rigging schemes in public procurement.
Parliament has approved Law 10,317 on Amendments to Law 9,121 on the Protection of Competition. The amendments were proposed by the Albanian Competition Authority as part of a special competition law review taskforce, with the aim of harmonising Albania's competition legislation with EU law.
Parliament recently approved the new Law on Administrative Contraventions. Based on the provisions of the new law, as well as on the proposed amendments to the Competition Law, facts constituting competition infringements should be considered and relevant fines decided by the Competition Authority.
The Competition Authority has proposed several amendments to the Competition Law in order to harmonize it with the EU regime. The amendments affect almost all chapters of the law, including those on anti-competitive agreements, merger control, dominance, notification and investigation procedures, fines and appeals and their execution.
Recent regulatory reforms include a sweeping prohibition of exclusive agreements and the attachment of the Competition Council to the Trade Ministry. It is unclear whether the council will manage to balance effective enforcement and independence, but the moves indicate that undertakings keen to break into the Algerian market or extend their market share can no longer afford to ignore the regulator or the law.
In response to an appeal lodged by the National Commission for the Defence of Competition, the Supreme Court recently agreed with a federal court decision that the commission's request for closure of proceedings initiated in connection with a complaint filed for anti-competitive acts prohibited by the Antitrust Law should be overturned. The court argued that the resolution exceeded the powers vested in the commission.
The secretary of domestic trade recently issued a new preventive measure within the pay television market and ordered an important provider of pay television channels to refrain from entering into certain conduct that may infringe the provisions set forth in the Antitrust Law. The new preventive measure shows that the commission continues to assess competition in the pay television market, but may yet be revoked.
Tribunal A of the Court of Appeals on Economic Criminal Matters recently issued a resolution annulling a decision of the Antitrust Commission issued under Section 35 of the Antitrust Law. The case involved the supply of newsprint paper to a La Rioja newspaper. The resolution confirmed that the Antitrust Commission cannot issue preventive measures under Section 35.
Over the last few years the National Commission for the Defence of Competition has been engaged in competition advocacy. Each year the commission executes a number of measures that aim to spread the provisions set forth in the Antitrust Law and the concept of free competition across the community. The commission has a wide range of alternative ways to implement competition advocacy policies.
The Antitrust Commission has issued a new preventive measure under Section 35 of the Antitrust Law. The resolution, which originated from an accusation filed by a freelance air conditioning unit installer, compelled Argentina's largest retail stores to grant guarantees for air conditioning equipment, even if the equipment is not installed by the stores' own team of installers.
Although not specifically contemplated by the Antitrust Law or its regulatory decrees, preliminary diligence is increasingly used by the Antitrust Commission in order to establish whether an economic transaction with effect in Argentina should have been notified according to the terms of Section 8 of the Antitrust Law.
The Federal Court has dismissed applications by Emirates and Singapore Airlines challenging the validity of Section 155 notices issued by the Australian Competition and Consumer Commission for the purpose of compulsorily obtaining information and documents relating to an alleged international air cargo cartel.
The government has introduced legislation to criminalize serious cartel conduct. The revised cartel bill introduces appropriate exceptions to the application of the cartel laws. These exceptions are intended to ensure that legitimate commercial arrangements and conduct that are not prohibited under the Trade Practices Act are not inadvertently captured as cartel conduct.
The Senate recently passed significant amendments to the Trade Practices Act 1974. They include amendments to the misuse of market power provisions which are designed to make the prosecution of predatory pricing cases easier by specifically stating that recoupment is not required.
Minister for Competition Policy and Consumer Affairs Chris Bowen recently released a revised draft of the Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 that proposes to criminalize serious cartel conduct. The government has provided no additional guidance to coincide with the release of this bill.
The Australian Competition and Consumer Commission (ACCC) has instituted proceedings in the Federal Court against 28 parties for misleading and deceptive conduct and exclusive dealing. The ACCC claims that the respondents used a business model called ‘bundled services deals’ to enter into contracts to provide small businesses with services.
The minister for competition policy and consumer affairs has directed the Australian Competition and Consumer Commission to conduct an inquiry into the rising cost of groceries that will consider all aspects of the supply chain in the grocery industry, including the nature of competition at the supply, wholesale and retail levels.
Including: Reform; General Procedure; Cartels; Vertical Restrictions of Distribution; Merger Control; Dominant Market Position.
The long-discussed changes to the Austrian competition laws have finally become effective. These concern, among other things, the leniency programme implemented in Austria in 2006. The amended Competition Act now makes it possible for undertakings to qualify for full immunity from fines on a leniency request even after the Federal Competition Authority has gained knowledge of the reported infringement.
The Higher Cartel Court recently ruled on the obligation of dominant undertakings to contract with other market participants, including competitors, under specific circumstances. It held that they must be very careful to avoid discriminating against other undertakings by refusing to contract with them. The decision provides interesting clarifications on the applicability of the 'essential facilities' doctrine in such cases.
The Cartel Court recently rejected a Federal Cartel Authority action to fine approximately 50 Austrian plumbers for alleged collusion in a tender procedure initiated by the City of Vienna housing agency in 2007. The court ruled that all activities of the defendants - regardless of whether they had actually infringed cartel law - were exempt from the cartel ban under the Austrian de minimis regime.
Two recent Supreme Court decisions have triggered significant debate in the competition field, both in Austria and at a European level. Both cases questioned whether a justified error in law could exclude the imposition of a fine for alleged anti-competitive behaviour. One case has been referred to the European Court of Justice, as the Supreme Court considered that EU law did not provide a clear answer.
After a lengthy internal discussion process, the Ministry of Justice and the Ministry for Economic Affairs recently presented a draft bill for changes to the competition law in Austria. While fundamental changes to this draft bill are unlikely to occur, it remains to be seen how these amendments - if enacted - will affect administration, jurisdiction and advocacy for competition law in Austria.
For some time, the official guidelines of the tax authorities on income tax have included the way in which competition fines should be treated under income tax law. With the recent entry into force of the Act Changing Tax Law 2011, the deduction of competition fines as a whole is now explicitly excluded. Under the new law, undertakings hit by fines for infringing competition law may feel a double impact.
In a long-awaited decision, the Brussels Court of Appeal has held that advice drafted by in-house legal counsel is to be considered as covered by legal professional privilege when facing an investigation under the Competition Act. The decision allows companies to oppose the seizure of documents drafted by their in-house counsel during dawn raids by the Competition Authority; however, certain restrictions apply.
The president of the Competition Council has ordered Port Real Estate, a warehouse operator in the port of Antwerp, to maintain minimum load-out rates for robusta coffee traded on the NYSE Liffe Exchange in London. The interim order follows a complaint lodged by a UK-based trader in agricultural goods, on the basis of an alleged abuse of dominant position by Port Real Estate.
The Competition Council has ruled that the adoption of a directive by the National Chamber of Judicial Officers - on the fees applicable for so-called 'amicable' (ie, pre-judicial) collection - infringed the Competition Act. Among other things, the council noted that the fact that such officers exercise state authority in some tasks does not preclude the application of competition rules to extra-judicial tasks.
New fining guidelines which were recently adopted by the Competition Council aim to improve transparency for undertakings and associations of undertakings under investigation. However, the council clearly retains significant discretion when determining the size of a fine. Among other things, the guidelines leave open the issue of taking compliance programmes into account as a mitigating circumstance.
The Supreme Court has issued a succinct judgment on the scope of the Court of Appeal's powers to overturn Competition Council decisions and the nature of proceedings before the council. This is the latest decision in a case that began in 1995 with complaints filed by 12 independent motorcycle distributors in Belgium against five official importers of motorcycles, including Honda Belgium.
The Competition Council of Bosnia and Herzegovina recently fined a number of Bosnian banks for abuse of their dominant market position. The abuse occurred when the banks entered into restrictive exclusivity clauses in agreements with Western Union Network (France) SAS. The banks were fined over €1.2 million in total.
The Competition Council has found that some provisions of the draft Law on Transport by Taxi breach the Competition Act. The council held that the provisions limited competition by imposing different conditions on identical transactions, thus putting some taxi drivers in a less favourable position.
The Competition Council recently held that a government decision setting out a list of essential medication necessary for healthcare covered by mandatory health insurance prevents, limits and distorts competition in the medication market. The government was ordered to ensure that there is no limitation on the number and origin of medications included on the list.
The Competition Council of Bosnia and Herzegovina found that agreements concluded between the Ministry of Education, Science and Youth of the Canton of Sarajevo and the municipalities of Vogosca, Ilijas, Ilidza, Novo Sarajevo, Stari Grad, Novi Grad, Trnovo and Hadzici, relating to subsidised student transport services, were in breach of competition rules. As a result, the council imposed a fine of €13,000 on the ministry.
After the European Union signed the Stabilisation and Association Agreement with Bosnia and Herzegovina , the Competition Authority demonstrated good faith by declaring the harmonisation of national legislation with the EU competition regime as one of its goals. However, the 2011 Progress Report concluded that "overall, preparations in the area of competition remain at an early stage."
The Competition Council has rendered a decision in which it found that one of the incumbent telecommunications operators in Bosnia and Herzegovina did not enter into a restrictive agreement, as had been alleged in a competitor's request to initiate investigative proceedings.
Including: Mergers; Administrative Processes; Preliminary Investigations; Flow of Cases; Comment.
The Administrative Council for Economic Defence (CADE) recently fined the Brazilian Public Performance Collecting Rights Society (and its six associations) approximately $19 million for engaging in price fixing. CADE stated that the society and the associations had acted in a concerted manner to fix the rates that they collected in relation to royalties for public performances.
Following implementation of the new merger control regime, the Administrative Council for Economic Defence (CADE) has shifted its focus to establishing new settlement rules for its leniency programme, with the aim of encouraging more companies to blow the whistle on cartel cases. However, uncertainties in relation to fines and the new obligation to admit to participation in a cartel may undermine CADE's good intentions.
There is a general consensus that one of the main purposes of the new antitrust legislation is to reduce the submission of irrelevant M&A transactions and to allow the Administrative Council for Economic Defence to focus on relevant mergers and conduct cases. However, as far as investment funds are concerned, it appears that the legislation has not yet achieved its goal.
The new Brazilian antitrust legislation recently entered into force. The legislation includes changes to the pre-merger system, as well as the introduction of notification thresholds, statutory time periods and notification forms. The new regime aims to bring Brazil into line with US and European antitrust standards, and will present a significant challenge for the authorities and professionals that must adapt to the new system.
The Administrative Council for Economic Defence (CADE) recently granted an injunction suspending the rights of a steelmaker to buy shares in its rival. This ruling consolidates CADE's view that the acquisition of a minority stake in a rival company may generate competition concerns, even if the acquiring company has no relevant influence on the target deriving from its position as a minority shareholder.
The Administrative Council for Economic Defence (CADE) recently carried out an internal survey showing that a total of 892 merger cases were heard in 2011. According to CADE President Olavo Chinaglia, this impressive figure is a result of both the increasing number of notified cases, thanks to growth in the Brazilian economy, and the enhanced ability of CADE personnel to deal with the increasing workloads.
The Commission for the Protection of Competition recently announced that it had extended the scope of the ongoing sector inquiry into the supply and distribution of gas in the production, trade, transmission and electricity supply markets. The commission will analyse the level of transparency in price formation and identify possible vertical restraints.
The Competition Protection Commission recently adopted guidelines regarding corporate compliance programmes. The commission encourages businesses to implement compliance programmes to avoid the risks of non-compliance with competition law. However, a compliance programme will not be considered as a mitigating factor when calculating the penalty for competition law infringement.
The Competition Protection Commission recently imposed the highest penalty in its history for prohibited agreements between the distributor of Hyundai in Bulgaria, Industrial Commerce OOD, and authorised Hyundai/Industrial Commerce dealers. The penalties were imposed at a maximum amount allowed by the Competition Protection Act.
The Competition Protection Commission recently announced the findings of its inquiry into the vertically related markets of wheat, wheat flour and mass wheat bread. Its investigation revealed that while increases in the wholesale price of flour were related to increases in the price of wheat, the respective increases did not always correspond, suggesting a prohibited agreement.
In a recent decision the Competition Protection Commission approved proposals for commitments from some of the largest retail chains in Bulgaria which had previously been suspected of prohibited practices. The commission found that the proposals contained specific measures which may prevent the restriction of competition in the relevant markets.
The Competition Protection Commission has adopted a regulation on remedies for the restoration of effective competition when it has serious doubts about whether a notified transaction may establish or strengthen a dominant position and opens an in-depth phase of the merger control proceedings. With the adoption of the regulation, the commission aims to make merger control proceedings more transparent.
Including: criminal matters; civil matters; general matters.
The Competition Tribunal recently rejected the commissioner of competition's argument that the Toronto Real Estate Board was engaging in anti-competitive acts contrary to Section 79 of the Competition Act. An interesting question arising from this case is whether behaviour that is harmful to competition generally, but which is not targeted specifically at a particular competitor, can ever be considered an abuse of dominance.
The Federal Court of Appeal recently released its reasons in the appeal of Commissioner of Competition v Tervita Corporation. This update summarises the key findings and provides practical suggestions for merging parties whose transaction may be viewed as anti-competitive and consequently investigated by the Competition Bureau.
Interim Competition Commissioner John Pecman recently announced that the Competition Bureau will be changing its approach to Section 11 orders under the Competition Act. Such orders – made during the course of an inquiry – allow the commissioner to examine any person which has or is likely to have relevant information, and to obtain documents or information that is deemed relevant to an inquiry.
Stricter sentences have recently been introduced for criminal convictions under the Competition Act. As there will now be less flexibility in the sentences that can be agreed to, these changes will also affect the way that corporations and individuals work out plea agreements with the Competition Bureau and the director of public prosecutions.
Following the resignation of Melanie Aitken as commissioner of competition, the federal government has announced that John Pecman will serve as interim commissioner of competition for up to one year. The fact that Pecman's appointment is for up to one year suggests that the government may well take its time to conduct an exhaustive search for the next commissioner.
In her final days as commissioner of competition, Melanie Aitken has launched a significant action, laying criminal charges over an alleged breach of a merger-related consent order. The approach is unusual, as breaches of consent orders are often dealt with in civil contempt proceedings before the Competition Tribunal.
Two controversial cases that have been decided by the Antitrust Commission create new boundaries for the scope of enforceability of trademark rights. In the first case the commission permits parallel imports. In the second case the commission dismisses a registered trademark because of non-use by its owner.
According to the new Tender Offer Law, the prior approval of the Superintendency of Banks is required for mergers and acquisitions of banks and the purchase of all or a substantial part of their assets.
This update discusses the main features of the recent public bidding for frequencies of the local wireless telephone service. Amendments were made to certain conditions of the bidding process that were unfair to new entrants. The National Telecommunications Agency has appealed against the changes and is awaiting the Supreme Court's judgment.
The Antitrust Commission has issued a landmark decision concerning trade dress. Even though there is no intellectual property right in the lay out of a product, imitating that lay out may constitute unfair competition.
The Ministry of Commerce (MOFCOM) recently announced its conditional approval of Marubeni Corporation's acquisition of Gavilon Holdings. Given Marubeni's advantage in China's soybean import market and Gavilon's influence in the North American soybean market, MOFCOM initially held that the proposed deal could lead to Marubeni's enhanced control over China's soybean import market and thus restrict competition.
The Ministry of Commerce (MOFCOM) recently gave the green light to the Glencore/Xstrata deal, which will be the largest merger in mining history. The approval has been awaited for more than a year. MOFCOM issued the approval with certain restrictive conditions on the deal, following the practice of merger review agencies in other relevant jurisdictions.
The simmering war between two large Chinese internet companies has culminated in Qihoo 360 losing the first-ever antitrust litigation involving instant messaging services. The court held that Tencent did not commit an abuse of dominance as defined in the Anti-monopoly Law. The case shows that henceforth, Chinese courts will challenge monopoly behaviours with more muscle.
Less than two months after a breakthrough cartel case resulting in record fines, the Chinese price monopoly watchdog has levied another harsh punishment against two luxury Chinese liquor producers. This case reaffirms that companies operating in China should prudently review their distribution policies in particular and antitrust compliance in general in order to avoid antitrust risks.
At the end of 2011 the Hunan Province Administration for Industry and Commerce (AIC) received multiple reports concerning monopoly agreements and the elimination of competition on a new auto insurance market operated by the New Auto Centre. Following an investigation, the AIC has imposed a penalty of Rmb1.7 million on some of the involved parties.
The National Development and Reform Commission (NDRC), one of the main anti-monopoly regulatory authorities in China, recently imposed its highest-ever fines on six liquid crystal display panel manufacturers found guilty of price collusion under the Price Law. The case provides particular insight on when and how the NDRC exercises its discretion to apply either the Price Law or the Anti-monopoly Law to investigations.
Colombian antitrust laws have evolved in several phases. A couple of recently enacted statutes – the Anti-corruption Statute and the Anti-bureaucracy Statute – have introduced some notable interesting changes. In addition, the Anti-bureaucracy Statute modified certain procedures that must be followed in investigations and procedures carried out by the Superintendence of Industry and Commerce.
Upon Croatia's accession to the European Union, the Competition Agency will directly apply the trade-related provisions of EU law in cases which affect trade between member states and Croatia. Presently, these provisions are applied indirectly, as an interpretative mechanism. Except in cases of a purely national nature, infringements of the Competition Act will fall under the jurisdiction of both the European Commission and the agency.
In recent months the Competition Agency has issued two interesting decisions relating to the telecommunications sector. While the first case is interesting with respect to substantive law, the second has significant procedural implications for future cartel cases. Both decisions will significantly influence the future implementation of competition rules in Croatia.
Until the Competition Act entered into force in October 2010, the Competition Agency was not empowered to impose fines directly where it established violations of competition law. Although the relevant regulation has been in force for some time, the agency is only now poised to impose its first fine with regard to the failure to notify a concentration.
The Competition Agency has for the first time accepted commitments under the new legal framework for competition. The agency's decisions make the commitments legally binding on Primalab without reaching any conclusion as to whether any infringement of Croatian competition rules has taken place. If Primalab were to breach its commitments, the agency could impose a fine of up to 10% of Primalab's total turnover.
The Competition Agency has announced fines for infringements of the Competition Act in the bread producers cartel case, the first time it has used its powers to impose fines since the act came into force in 2010. However, taking into consideration the low amount, the fines appear to be largely symbolic. It is hoped that they will deter other undertakings from engaging in anti-competitive behaviour.
The Competition Agency recently opened formal antitrust proceedings against the Auto Club in order to investigate whether it had distorted competition in the breakdown services and roadside assistance market by entering into anti-competitive agreements with its contractors.
The Supreme Court recently ruled on the applicable criteria for granting an interim order to supply, as issued by the Commission for the Protection of Competition under the law. The case concerned alleged abuse of dominance by the Pancyprian Organisation of Cattle Farmers, a group of cow's milk producers from across Cyprus, in relation to the wholesale distribution of fresh cow's milk in the country.
During the past two years the Cyprus Commission for the Protection of Competition has been active in the control of both competition and concentrations specifically, yielding an impressive number of reasoned decisions. All acquirers must file a notification of concentration with the commission in the event that certain conditions are met. A number of such notifications have set a precedent.
The forthcoming amendment to the Act on the Protection of Competition will make several changes to Competition Authority practices. Among other things, the amendment will introduce prioritisation into its practices, allowing the authority to decide not to initiate administrative proceedings following certain alleged breaches of the act where those breaches have a minor effect on competition.
In a recent repeated first instance decision, the Competition Authority imposed a fine of approximately Kr93.1 million (approximately €3.7 million) on Telefónica Czech Republic for abuse of its dominant position in the public telephone services market in relation to undertakings through fixed lines. The authority increased the original fine imposed on Telefónica for such anti-competitive conduct by more than Kr11.4 million.
The Brno Regional Court has defined for the first time the rules that govern access by investigated undertakings to the leniency applications contained in the Competition Authority's administrative file during cartel investigations. The court allowed special treatment for leniency applications, ruling that the authority need not provide justification when restricting or denying access to the administrative file.
The Office for the Protection of Competition recently published a draft amendment to the Competition Act and opened a public consultation to receive feedback. The amendment follows the contemplated abolishment of the Act on Significant Market Power. The main provisions of the abolished act will be incorporated in the Competition Act. The remaining, mainly technical, provisions will be included in the Act on Prices.
The president of the Office for the Protection of Competition recently issued a second-instance decision confirming the authority's decision to fine Sokolovská uhelná for its participation in a vertical agreement. The fine amounted to Kr17.3 million (approximately €700,000) and is the highest ever to be imposed by the authority for participation in a vertical agreement.
The Office for the Protection of Competition recently approved the acquisition of a Czech construction company by a leading central European construction company. The office also imposed fines on a Czech brown coal mining company and a Czech producer of mineral water and soft drinks for the conclusion and performance of restricted export prohibition agreements.
The Competition Appeals Tribunal has overruled a decision of the Competition Council which found that the Danish Pharmaceutical Association had violated Section 6 of the Competition Act and Article 81 of the EC Treaty. The tribunal held that as the pharmaceutical market is highly regulated, it was not possible for the wholesalers to compete on price, quality or product diversity, but instead only on services and cost-based discounts.
The Competition Authority recently published the Danish Competition Report for 2007. The report highlights that mergers that could have possible detrimental effects on competition are exempt from the Danish merger control rules due to the high threshold values, which are among the highest in the European Union.
Following dawn raids on a number of Danish banks, the Competition Council has issued a ruling concluding that seven Danish banks had violated the Competition Act by participating in a cartel for a period of several years. The council found that the banks had participated in a market-sharing agreement by dividing customers geographically.
The Competition Appeal Board has repealed a ruling of the Competition Council that Viasat's business terms did not violate Sections 6 and 11 of the Competition Act, which deal with anti-competitive behaviour and correspond to Articles 81 and 82 of the EC Treaty. The case turned on the definition of the relevant market reached following the council's examination of the facts.
In order to boost competition and enhance transparency, the minister for economic and business affairs has proposed a bill containing several amendments to the Competition Act. The amendments can be categorized into two groups: preventive measures and investigative measures.
In a recent decision the Competition Council stated that a merger that involved the transformation of a business from a voluntary chain to a centralized capital chain of retail shops impeded competition in a way that created a dominant position in the market, even when almost all the participating retail shops in the voluntary chain followed the same pricing policy.
The entry into force of the Competition Law prompted a transformation in national commercial practice. Its most significant measure was the creation of a new public entity, the Competition Superintendency, established to prevent and eliminate practices which limit or restrict competitive commercial activity or impede an economic agent's access to the Salvadoran market.
The Bill on Free Competition is under discussion in the Salvadoran Parliament. If the bill is finally approved, it will introduce a new regime governing M&A transactions. Among other things, it prohibits competitors from dividing the market between them and subjects concentrations of a certain value to the prior authorization of the Bureau of Competition.
After conducting a thorough analysis of the directory media market, the Competition Board has unconditionally cleared a merger between two leading Estonian directory media companies which will result in a joint market share of 66%. The decision is significant because of the issues surrounding the board's market definition and its consideration of the Internet as a valuable alternative to traditional information sources.
The Competition Board recently fined Narva Elektrijaamad AS, a subsidiary of the state-owned electricity monopoly Eesti Energia, Ekr250,000 for an abuse of its dominant position. This is one of the biggest fines to be imposed in the board's history, confirming that the board is taking serious action against dominant companies that abuse their dominant position.
The Competition Board has initiated investigations into the local water supply and wastewater discharge services market in order to verify its compliance with competition laws. The main reason behind the investigations is the dramatic increase in the prices charged for water supply and wastewater discharge services in Estonia over the last three years.
The Ministry of Justice has drafted amendments to the Penal Code, the Code of Criminal Procedure and the Competition Act regarding the introduction of a leniency programme designed to assist in the battle against cartels. The amendments were presented to the public at the beginning of 2009.
In the past the Competition Board has been accused of being too passive and ignoring severe competition law infringements. The board is eager to disprove these accusations and has thus taken on a more active investigatory role. Since the beginning of 2008 the Competition Board, along with the Public Prosecutor's Office, has commenced six criminal cases investigating cartel infringements.
The Competition Board recently issued a precept to AS Narva Elektrijaamad regarding abuse of its dominant position in the wholesale electricity market. Two small undertakings engaged in the sale of electricity had filed a complaint against Narva Elektrijaamad regarding the termination of a provision of a fixed supply of electricity.
A recent European Court of Justice judgment showcases the uncertainties and exposure faced by both the buyer and seller of a business, should competition law violations subsequently come to light. The case provides a timely warning to buyers and sellers to consider conducting a thorough audit before a business is sold and to ensure that competition law risks are covered by adequate warranties and indemnities.
The European Commission recently published a long-awaited report on co(re)insurance pools and ad hoc co(re)insurance agreements on the subscription market. The report contains some helpful conclusions on the commission's purported concerns over ad hoc agreements and hints at a perceived failure by the industry to comply adequately with the Insurance Block Exemption Regulation.
The European Union recently issued a green paper aimed at tackling unfair business-to-business practices. It suggests that minimum notice periods should be mandated - something previously alien to common law jurisdictions. If mandatory notice periods operate as substantial exit penalties, a supplier may think twice before entering new markets. The paper also states that unfairly restrictive territorial restraints should be examined.
'Crisis cartels' – schemes designed to downsize a sector in an orderly fashion – are not tolerated by the European competition authorities. In enforcement terms, there has been no retreat on this principle and the authorities are being particularly vigilant to the rise of cartels in a recession. But do Europe's competition laws offer any respite to industries feeling the effects of the economic crisis?
The European Commission has recently published proposals to overhaul the Technology Transfer Block Exemption Regulation, which provides a competition law safe harbour for agreements which license patents and know-how to licensees for the production of goods and services. While no fundamental changes are being proposed, the commission has proposed tightening the rules in several ways.
EU Competition Commissioner Joaquin Almunia has shown himself willing to tackle some difficult and sometimes highly political issues. In 2013 the commission is poised to take a stand on a number of key issues, including patent settlement agreements, cartels and controversial mergers. While the commission is committed to efficient enforcement, it has equally shown that it is prepared to tackle tough cases.
The Competition Authority recently ordered Finnish dairy company Valio Ltd to end its abusive pricing practice. The authority also proposed that the Market Court impose a €70 million infringement fine on Valio. According to the authority, Valio made a strategic decision to drop the wholesale price of fresh milk below cost to foreclose the fresh milk market from imported milk; this practice continued for almost three years.
During 2012 the Competition Authority has completed investigations relating to the distribution of pharmaceuticals and published a report on pharmaceutical regulation and the role of pharmacies. The topics reviewed include the single channel distribution system, rules on the substitution of drugs and legislation on pharmaceutical retail sales.
The Ministry of Employment and the Economy has published for comment a draft bill that would amend the Competition Act. The bill would introduce a sector-specific threshold for dominance in the consumer goods retail market, which would directly affect the two main operators in that sector. It is hoped that the proposal will make it easier for smaller suppliers to enter the distribution chain.
The Supreme Administrative Court has upheld a cartel decision of the Market Court against five independent car spare parts wholesalers, rejecting the appeals of both the defendants and the Competition Authority. This is the first time that the Supreme Administrative Court has reviewed a decision which was based on a leniency application.
A report recently published by the Ministry of Employment and the Economy indicates that the ministry has decided to support the merger between the Competition Authority and the Consumer Agency. A government bill for the combined new authority will be issued after the summer and the combined authority could become operational at the beginning of 2013.
The Market Court imposed a €3 million fine on Finnish design firm Iittala Group for minimum resale price maintenance which took place from 2005 to 2007. According to the court, Iittala pressured retailers to follow its instructions on minimum prices for its products and decided maximum discount percentages, as well as the duration of sale campaigns.
The Paris Court of Appeal recently decided to consult the Competition Authority on the lawfulness of a post-contractual non-reaffiliation clause in a franchise contract. The court considered that a review of the issue was fully warranted as, since the Pronuptia ruling, the courts have examined the lawfulness of such clauses with regard to the need to protect franchisor know-how.
The Competition Authority has found France's national state-owned railway company, SNCF, guilty of several instances of abuse of dominant position within the context of the opening up of the rail transport sector to competitors. The authority imposed a single fine of €60 million and issued an injunction to re-establish effective and sustainable competition on the market.
Combined quantitative and qualitative selective distribution is a flexible way of organising a distribution network. It allows for the selection of distributors based on qualitative criteria, while limiting their number, and the prevention of sales to non-authorised retailers which do not meet the selection criteria. The Court of Cassation recently issued a key ruling on this issue.
In a case relating to the takeover of satellite operator TPS by rival Group Canal Plus, the Constitutional Council was asked to issue a priority preliminary ruling on the constitutionality of the Competition Authority's power to withdraw a clearance decision and impose a pecuniary penalty. The council ruled that such power does not violate the principle of freedom to exercise a trade or profession not justified on economic public policy grounds.
On the same day that it withdrew authorisation of the takeover of TPS by Group Canal Plus (GCP), the Competition Authority authorised Vivendi and GCP's acquisition of the free-to-air digital channels Direct 8 and Direct Star. GCP is subject to a number of commitments; however, given its development potential in the free-to-air television market and its leverage in pay-to-view television, caution is required.
In late 2010 Colruyt France informed the Competition Authority of three mergers that it had carried out, but failed to notify. The authority examined the applicable rules relating to the limitation period in respect of the dates of the operations at issue. With regard to the starting point of the limitation period, it held that the implementation of a concentration without prior notification constitutes an ongoing infringement.
Including: Amendments to the Act against Restraints of Competition; New Regime on Horizontal and Vertical Restraints; Abuse of Dominant Position; Merger Control; Extended Powers of Competition Authorities; Increased Fines; Private Enforcement.
The Dusseldorf Higher Regional Court recently ruled on the liquefied gas cartel members' appeal against a Federal Cartel Office (FCO) fine decision. The court found new evidence which allowed it to reach a different conclusion from the FCO when evaluating both the duration and gravity of the infringement. As a result, the court not only confirmed the fines but increased them for most appellants.
The Federal Supreme Court recently confirmed a judgment of the Berlin Court of Appeal concerning a telephone call on which a supplier was found to have exerted illicit pressure towards its retailer in order to enforce prohibited resale price maintenance. The appeal court construed the circumstances in a way that the retailer could only interpret the call as the supplier's attempt to exert unlawful pressure in order to influence retail prices.
The Constitutional Court recently ruled that the obligation to pay interest on fines imposed by a competition authority does not breach the Constitution. The court does not consider it contrary to the principle of equality that interest must be paid on cartel fines only. The risk that interest must be paid if an appeal against a fine is withdrawn should be taken into account when deciding whether to bring an appeal.
The Federal Cartel Office recently prohibited the continuation of a joint venture which it had cleared in 1996. The decision demonstrates that merger control clearance provides little legal certainty in Germany in cases where competitors intend to create a joint venture, at least if the joint venture operates on the same market as one or more of its parent entities.
The Federal Parliament recently passed the Eighth Amendment to the Act against Restraints of Competition with the aim of further modernising the conditions for competition. The revision introduces a new test for the assessment of mergers - the significant impediment to effective competition test - which facilitates a more flexible review of cases.
The Federal Cartel Office (FCO) deems exchanges of information between competing manufacturers regarding the status of proceedings in the context of annual meetings with retailers to be a severe violation of competition law. Recently, for the third time since 2008, the FCO imposed fines for such offences.
The Milk Cartel Case, based on an investigation initiated by the Competition Commission into certain practices by companies engaged in the production, wholesale distribution and retail of milk and dairy products, has led to two decisions. The first concerns horizontal agreements and the second concerns vertical agreements.
The Competition Commission recently imposed a €3.9 million fine on Hyundai Hellas SA, the authorized distributor of Hyundai spare parts in Greece. In the same decision the commission acquitted AUTODEAL SA, the authorized distributor of Kia spare parts. Huyndai Hellas has appealed the decision.
The Competition Commission has imposed a fine amounting to a total of €12.7 million on MAVA SA, the national importer and exclusive distributor of Renault motor vehicles in Greece. The commission's investigation revealed that MAVA had adopted an intra-brand retail price-fixing policy and had exerted pressure on its dealers to finance cars sold on credit through a specific financial institution.
A proposed legislative amendment may have a major impact on ongoing investigations at the Competition Office. According to the proposal, the Competition Office will have no authority to investigate any agreement that is related to agricultural products and aimed at the restriction, distortion or exclusion of competition if the agreement attempts to guarantee fair and equitable income for the parties thereto.
In a recent decision the Competition Office concluded that three major rail cargo companies had participated in a price-fixing and market-sharing arrangement in the Hungarian rail cargo market between 2004 and 2009. As a result of the infringement, the Competition Office imposed substantial fines amounting to Ft1.25 billion (approximately €4.5 million). All three infringers were state-owned undertakings.
The Competition Office recently approved the creation of a joint venture between Hungarian Post, the Hungarian Electricity Works and MFB Invest, a subsidiary of the Hungarian Development Bank. All of the new entity's shareholders are state-owned companies, and the regulator has provided useful guidance on how to calculate the turnover of state-owned undertakings in a merger control context.
Following a public consultation, the Competition Office has published its new merger clearance application form. It incorporates many elements recommended by market participants and practitioners, but the rationale for some of its requirements is hard to fathom. The Competition Office has also issued guidelines on the rules for pre-notification consultations.
After many years of debate between the Competition Office and various courts, new guidelines have been issued on determining fines in cartel and abuse of dominance cases, detailing the calculation of base amounts and adjustments. The Competition Office's right to include a corporate group's foreign turnover in calculating the base amount could lead to a sharp rise in fines.
A new decree on block exemptions for vertical agreements and concerted practices mainly follows the principles of its predecessor, but introduces one significant change: both parties - the buyer and the supplier - must have a market share of below 30% in their relevant markets.
In a recent decision the Competition Council annulled a merger that had already taken place. This decision is significant because it is the first time that the council has exercised its powers in this way. There is also some controversy surrounding the fact that the council appears to have departed from EC merger regulations in its decision.
Although there are certain shortcomings with respect to Iceland’s newly amended Competition Act, it has been harmonized with EEA legislation. Now, the Competition Council must be notified of all mergers if the total turnover of the undertakings is at least Ikr1 billion.
In two recent cases before the Competition Commission, an association of transporters has been placed under suspicion of freight rigging and an investigation has been ordered against a group of general insurers. The former relates to the association's alleged role in directing members to increase freight charges soon after the diesel price was raised, and the latter to allegations of cartel activity.
The Competition Commission recently approved a proposed sale by Orchid Chemicals and Pharmaceuticals Ltd (OCPL) of certain of its assets to Hospira Healthcare, subject to certain conditions. The business transfer agreement contained a non-compete clause that restricted OCPL from undertaking certain business activities. While allowing the clause in principle, the commission observed that it expected it to be 'reasonable'.
Following a call for modifications to the Competition Act and taking into account the suggestions of an expert committee established for that purpose, the Competition (Amendment) Bill was recently introduced to Parliament. The bill, which is likely to be considered in the current budget session, includes changes to the definitions of 'turnover' and 'group' and introduces the concept of collective dominance.
The Competition Commission recently issued a ruling exonerating the Multiplex Association of India of charges of cartelisation and abuse of dominance for lack of evidence. According to the director general, as the multiplex theatre operators were aware of the outcome of engaging in anti-competitive activities following an earlier ruling, they avoided leaving a trail of written evidence or documents.
The Competition Commission recently imposed a penalty of Rs522.4 million on the Board of Control for Cricket in India for abusing its dominant position by restricting competition while conducting Indian Premier League tournaments, in contravention of the Competition Act. The commission argued that the principle of 'one federation per sport' did not automatically grant monopoly rights to sports federations.
The Competition Commission recently imposed a Rs4.74 million penalty on the All India Organisation of Chemists and Druggists (AIOCD) for violation of the Competition Act. The allegation was filed by a clearing and forwarding agent dealing in medicines of various pharmaceutical companies in India which alleged that the AIOCD had abused its dominant position by limiting and restricting the supply of pharmaceutical drugs.
The Business Competition Supervisory Commission has been increasingly active in rendering decisions in response to complaints under the Anti-monopoly Law. However, the enforcement of rulings against companies remains problematic, as demonstrated by the unsuccessful attempts to enforce convictions against retailer PT Carrefour Indonesia and state telecommunications firm PT Telekomunikasi Indonesia.
The Business Competition Supervisory Commission has found PT Suracojaya Abadi Motor, the main dealer in Yamaha motorcycles in South Sulawesi, to have conducted discriminatory practices which breached the Anti-monopoly and Unfair Business Competition Law.
The Business Competition Supervisory Commission recently found against both the distribution unit of the state electricity company and the company which it directly appointed to a project without following a tender process. However, the commission's majority and dissenting opinions are both open to criticism.
The Business Competition Supervisory Commission recently found that PT Perusahaan Gas Negara, the state-owned gas company, had discriminated against applicants in the tender process for the construction of a gas pipeline. The commission has been commended for looking beyond the formalities of the tender and observing the actual processes involved in it.
The Business Competition Supervisory Commission recently cleared Berlian Jasa Terminal Indonesia of allegations of tender rigging in the procurement of services for operating harbour cranes and gantries in the port of Surabaya. The commission made clear the grounds for its findings, but certain aspects of its conclusions are surprising.
The Business Competition Supervisory Commission has found Indonesia's leading cement producer guilty of price fixing and distributor restriction practices which breach the Anti-monopoly and Unfair Business Competition Law. The case differed from most such investigations in that no complaint was filed by the company's business rivals; the commission conducted the investigation on its own initiative.
The recently created Energy Community Competition Network is intended to facilitate the consistent application and enforcement of EU competition law to the electricity, gas and oil sectors within the contracting parties and regional markets. The network will serve as a platform for promoting discussion and developing best practices among the public institutions participating in the network.
All media mergers must be approved by the Competition Authority and the minister for enterprise, trade and employment. A rise in M&A activity in the telecommunications and broadcasting sectors in the last three years has resulted in the notification of a significant number of deals to the authority.
In the first merger control decision of its type since the entry into force of Ireland's new merger control regime in 2002, the Irish Competition Authority has required divestiture of certain minority shareholdings prior to approving a notified transaction.
The Irish Competition Authority has issued important new rules on the application of Irish competition law to vertical agreements. The new rules, which bring the Irish regime into line with existing EU practice, restrict the 'safety zones' within which vertical agreements are considered pro-competitive.
With the aim of increasing the number of mergers subject to pre-closing competition review, the Competition Authority has issued a notice on 'non-notifiable' mergers threatening injunctive and other court proceedings for failure to make a pre-closing merger filing. All small transactions that give rise to "prima facie competition concerns" should be so notified.
The Irish Competition Authority has launched a consultation process geared towards bringing Irish competition rules on vertical restraints into line with equivalent EU rules. Chief among the reforms proposed in the authority's consultation document is the alignment of Irish safe-harbour presumptions with comparable EU norms.
In what can only be seen as further endorsement of US-style enforcement practices, Irish policymakers have appointed a second US antitrust lawyer to the five-man board of the Competition Authority. The new member, Edward P Henneberry, will take over as director of the authority's new Merger Division in September 2003.
The food sector is facing radical new legislation aimed at increasing competition between food suppliers and among supermarkets. The proposed legislation will prohibit practices that could arguably be used by dominant suppliers to block expansion of smaller rivals, and empower the Antitrust Authority to order dominant retailers to divest existing supermarkets and ban their growth in certain locations.
The Antitrust Authority recently released its draft Antitrust Rules (Block Exemption for Non-horizontal Arrangements Without Price Restrictions). It is hoped that this draft exemption will herald a significant change in the way in which the Restrictive Trade Practices Law is enforced in relation to restrictive arrangements. At present, most restrictive arrangements require a specific exemption from the antitrust commissioner.
Parliament recently approved a legislative amendment to the 1988 Restrictive Trade Practices Act. The amendment will enable the antitrust commissioner to impose significant monetary payments unilaterally. This amendment is expected to increase the Antitrust Authority's enforcement powers significantly with regard to offences that are not hardcore cartel and bid-rigging violations.
During the past year, the Israeli antitrust regime has been undergoing near-constant change. Several governmental committees have been formed and a new antitrust commissioner has been appointed. There are early indications that the political, legal and personal changes that have occurred will lead to significant changes in the Israeli Antitrust Authority's enforcement policy.
The Israeli Parliament recently enacted a major reform of the Restrictive Trade Practices Law. The amendment provides the antitrust commissioner with new enforcement powers in an attempt to address the challenges posed by markets that demonstrate a tendency towards oligopolistic equilibrium. The amendment represents a major change in Israeli antitrust law and stands out from a global antitrust perspective.
The Antitrust Tribunal recently clarified the extraterritorial application of trade practices law. It based its decision on the effects doctrine, applying antitrust laws to offshore arrangements that may adversely affect competition in a local jurisdiction. In so doing, like many practitioners, the court ignored the previous Magrizo decision. It is likely that the effects doctrine will be the prevailing legal standard going forward.
The government has introduced two important changes to the competition rules that will affect companies doing business in Italy. The first is the introduction of a new mandatory tax that companies must pay annually to the Competition Authority. The second is a change in the merger turnover thresholds, which will result in a significantly reduced number of mergers being notified to the authority.
The Administrative Court of Lazio has annulled the Competition Authority's decision against MasterCard's domestic interchange fees. This is the first case in which the court, following the European Court of Justice's precedent in Alrosa, has limited the authority's broad discretion in rejecting undertakings and has annulled one of its decisions solely because the parties' undertakings were unlawfully rejected.
The Fair Trade Commission has issued cease and desist orders against five parties, including British, French and Italian enterprises, engaged in an international cartel in the market for marine hoses. This is the first case in which the commission has issued such an order against a foreign enterprise in a cartel.
The Anti-monopoly Act Study Group has published a summary of its discussions on the basic issues of the act, including the constitutionality of imposing an administrative surcharge and a criminal fine for certain categories of violation. The report is expected to be considered in the government's review of the act, which is due to take place before the end of the year.
The government is planning to reappoint Kazuhiko Takeshima as chairman of the Fair Trade Commission of Japan, subject to approval from the Diet. Under Takeshima's leadership, the commission has implemented policies to promote free and fair competition in the Japanese market.
The leniency programme for surcharge payments in case of cartel and bid rigging was introduced into the Anti-monopoly Law over a year ago. Among other things, the first company to apply for leniency before the commencement of the commission's investigation receives total immunity from the surcharge payment; the second company to apply for leniency receives a 50% reduction of the surcharge payment.
The Tokyo District Court and the Tokyo High Court have recently rendered judgments under the Code of Civil Procedure and the Anti-monopoly Act ordering the Fair Trade Commission to disclose records obtained during an investigation. If affirmed, these decisions may enable private individuals to obtain documents through the commission and pursue civil suits under the Anti-monopoly Act more effectively.
The Anti-monopoly Act has undergone drastic changes in recent years. The Anti-monopoly Act Study Group was formed in 2005 in order to review the administrative surcharge and enforcement systems and the hearing procedures. After a year-long discussion, the study group has recently published a paper listing the issues discussed and the opinions of the group's members.
Generally, pursuant to Article 8 of the Competition (Jersey) Law 2005, undertakings are prohibited from making arrangements with other undertakings that have the object or effect of hindering to an appreciable extent competition of the supply of goods or services within Jersey. This update deals with the key concepts and obligations that arise in relation to exclusive supply contracts.
The Competition (Jersey) Law 2005 generally prohibits any agreements, business practices and conduct which substantially lessen competition in Jersey. The Jersey Competition Regulatory Authority is responsible for enforcing the law. This update focuses on Part 4 of the law which regulates certain mergers and acquisitions in Jersey.
The needs of emergent and small investors have been addressed by the implementation of the Competition Act 2010 through Supplement 100 of the Kenya Gazette. The new act will change the legal landscape and create a level playing field for foreign and new entrants into the Kenyan commercial market.
The conclusion of administrative agreements in competition cases is not widespread practice. However, a recent case makes clear that by signing administrative agreements, undertakings which have been involved in cartel activity may have their fines reduced. Such agreements also represent useful mechanisms for settling legal disputes without having to endure lengthy court proceedings.
The Competition Council has ruled that three telecommunications undertakings engaged in illegal cartel activity with respect to their participation in public procurement procedures, and engaged in price setting. It remains to be seen whether the parties will appeal and request the court to consider the cartel activity and price-fixing aspects of the case separately, and to reset the fines accordingly.
The Competition Council has adopted its first decision to apply the concept of the abuse of a dominant position on the retail market. Previously, undertakings could draw guidance only from the explanatory material included in the guidelines issued by the council. The decision clarifies the provisions of the guidelines and provides guidance as to when an undertaking can be considered to enjoy a dominant position.
The Competition Council has adopted a decision finding an infringement of Article 11 by the Association of Sworn Auditors. The decision stated that the association had been in breach of competition rules since May 1997, when it adopted a decision to fix the minimum fee for audit of annual accounts at Lats500 (approximately €700).
In 2009 the Competition Council fined Riga Freeport Authority for abuse of its dominant position and imposed certain obligations on the authority. On the grounds that the authority subsequently delayed the fulfilment of certain obligations and completely failed to fulfil others, the council has now increased the fine by approximately 22%.
The Competition Law has been amended for the fourth time in the past two years. The amendments reflect changes to Latvia's budget and that of the Competition Council and reduce the size of the decision-making body from five members to three. Essentially, this will mean that all cases applying the Competition Law will be decided by the chairperson and two council members.
Lithuania's substantive competition law is similar to EU competition law; the main differences stem from enforcement rules and priorities. In recent times the Competition Council has adopted guidelines regarding fines and announced its enforcement priorities, highlighting several main characteristics of its approach.
A Competition Council decision against 32 shipbroking and agency companies, together with their representative association, in connection with a price-fixing agreement has been appealed to the Administrative Court. It raises significant questions about the de facto termination of anti-competitive practices and the extent to which an undertaking in an association must distance itself from infringing practices by the association.
A recent judgment is likely to prove significant for companies facing competition enforcement in Lithuania. The court delineated the responsibilities of market regulatory authorities and the Competition Authority, clarified the standard of proof for the authority and confirmed that in-depth economic analysis is needed to determine the existence of abuse of dominant position by applying excessive prices.
Amendments to competition legislation allow chief executive officers (CEOs) to be held personally liable for infringements if they contribute to the organisation or implementation of an anti-competitive practice. The change is to be welcomed, but making CEOs liable for their employees' anti-competitive actions may prove too great a burden - not only for CEOs, but also for companies operating in small Lithuanian markets.
The Supreme Adminstrative Court has issued the first decision on damage claims against the Competition Authority. A claim for damages in respect of fines already paid will not be accepted if it is based solely on the annulment of the decision. However, the standard of proof required in demonstrating that the authority exceeded its legitimate powers is still ambiguous.
The Seimas has adopted amendments to the Competition Law which expand the powers of the Competition Council to allow it to seal the premises of an undertaking where documents are kept during an investigation and to impose liability for damaging such a seal. In addition, the council will be allowed to enter and inspect private premises for the purposes of competition investigations.
The High Administrative Court of Macedonia recently confirmed that Macedonian Telekom had abused its dominant position by imposing excessive prices for the lease of digital lines. Macedonian Telecom did not have separate pricing for the lease of lines to its final consumers and wholesalers, which was considered an act of abuse. The procedure was concluded in this final ruling after six years of proceedings.
The Competition Authority recently found that two drug wholesalers had submitted bids with prices that were identical up to two decimal places for the generic drugs Etoposide and Docetaxel. The authority held that the wholesalers' behaviour constituted a concerted practice and imposed fines.
The Commission for the Protection of Competition has adopted the Guidelines for Issuing Phase I Clearances. The commission's goal is to make the merger control procedure more efficient. If the commission determines that a concentration meets the criteria set out in the guidelines, it will usually issue a Phase I decision within 25 business days.
The government recently adopted a new bylaw regulating the content of merger notifications. The main change relates to the provision of relevant data, stating that one set of data or documents must be provided in the filing process and a second set may be provided, but is not required.
Macedonia seems to be making significant efforts in the harmonisation of national legislation with EU requirements in the area of competition. The 2011 Progress Report concluded that "in the field of mergers and State aid the enforcement record has improved in quantitative terms", and that "good progress can be reported in the area of anti-trust, including mergers."
The Commission for the Protection of Competition has published its 2010 annual report in which it outlines the developments that occurred in the previous year. The report also references a report by the European Commission regarding the enforcement of competition laws in Macedonia, which noted that although overall progress had been made, implementation of the law remains poor in the fields of cartels and state aid.
Antitrust legislation recently found its way to Malaysia. In April 2010 Parliament passed the Competition Bill 2010. Once gazetted, it will be known as the Competition Act 2010. The new act is intended to prevent large companies from engaging in monopolistic and cartel activities and is in line with global trends to promote healthy competition among businesses for the ultimate benefit of consumers.
When structuring M&A transactions, particular attention must be given to competition controls. On receipt of a notification, the director general (competition) must assess whether the concentration may lead to a substantial lessening of competition in Malta. A simplified notification procedure applies to concentrations that are deemed to raise no serious doubts as to their legality.
A proposal was recently submitted to Congress that provides for major changes to the institutional structure of the Federal Competition Commission. Among other things, the proposal calls for the creation of a new commission as a constitutional and autonomous entity, with new enforcement powers and operational guidelines. However, there is concern that the proposed amendments could bring considerable complications.
In 2010 the Federal Competition Commission (FCC) commenced an investigation concerning allegations of relative monopolistic practices – specifically, denial of service and discrimination – in the provision of both airport and complementary services and slot allocation by Mexico City International Airport. However, the FCC recently issued a resolution closing the case due to lack of sufficient evidence.
In three separate cases the Federal Competition Commission (FCC) has exercised its investigative and punitive powers over government officials involved in anti-competitive practices. These decisions have confirmed the reach of the FCC's authority and reinforced the precedent that government officials are not exempt from complying with competition laws due to their status as public servants.
The Mexican courts recently admitted an unprecedented amparo motion by a civil rights association, aiming to preserve the rights of freedom of speech and information, against a merger involving Grupo Televisa and GSF Telecom Holdings. This amparo motion is the first of its kind and sets a precedent in determining legal standing under Mexican law.
A year after imposing the biggest fine in Mexican competition history on Telcel, the Federal Competition Commission stated that it would not impose liability on the mobile phone company, finding its proposal of commitments to be "suitable and economically viable". The decision raises a number of questions; a potential court challenge might yet provide the answers.
Amendments to the Federal Law on Economic Competition in 2011 enhanced the Federal Competition Commission's powers to conduct inspection visits. Companies should ensure that they understand the scope of these powers and should prepare for the possibility of dawn raids. However, they should also be aware of significant and worrying questions that these enhanced powers may raise in practice.
The new Competition Act recently came into force. Among other things, it stipulates that the enforcement of competition rules will be within the competencies of the Agency for Protection of Competition. The change represents a harmonisation with Montenegrin administrative law rules. To complement the act, new bylaws are set to be adopted in the first half of 2013.
A new law on the protection of competition recently came into force. The Competition Act regulates both market behaviour (restrictive agreements and abuse of dominance) and merger control. With respect to merger control, the most significant changes concern notification thresholds and deadlines, as well as deadlines within which the competition authority must review mergers and issue appropriate decisions.
The Trade and Industry Appeals Tribunal has resolved a long-running dispute on the scope of a company's right to remain silent. It ruled that ex-employees can invoke this right when questioned by the Competition Authority – now the Authority for Consumers and Markets – in connection with an investigation into their former employer.
The healthcare sector is likely to stay on the radar of the Authority for Consumers and Markets (ACM). Not only has the application of the separate notification thresholds for concentrations in the healthcare sector been extended by another five years, but the number of hospitals intending to merge is also rising: the ACM expects a minimum of seven hospital mergers during 2013 and has designated the healthcare sector as a priority.
The Hague District Court recently clarified that if the Competition Authority has a reasonable suspicion about an undertaking, it can order third parties to cooperate and provide data regarding that undertaking which otherwise would not be available. However, the authority cannot order third parties to help it proceed against undertakings about which it has insufficient suspicions.
The Rotterdam District Court has overturned a Competition Authority decision to impose fines on two supervisory board members. The court held that supervisory directors cannot be held personally liable for competition law infringements, except in exceptional circumstances.
In 2013 the Competition Authority will merge with the Independent Post and Telecommunications Authority and the Consumer Authority into a single regulator: the Netherlands Authority for Consumers and Markets (ACM). Its new chairman, Chris Fonteijn, recently gave a preview of the ACM's new enforcement strategy.
The Arnhem District Court recently ruled on a request to order TenneT – the electricity grid operator – to make available certain documents relating to damages as a result of the gas insulated switchgear cartel. The court rejected the petition, stating that Article 843a of the Code of Civil Procedure does not provide unrestricted access to all documents.
The Commerce Commission has published a new cartel leniency policy and the Ministry of Economic Development is considering whether to punish hardcore cartels with criminal penalties. Updating the leniency policy is a welcome move, giving companies greater certainty in dealing with the regulator, but does a small, trade-dependent nation such as New Zealand need a criminal cartel regime?
A recent proposed ports merger is a case in point of the government's suggestion that merger control threshold rules may be lowered in certain key sectors of the economy. The catalyst for change appears to be a repackaged 'national champion' argument: domestic firms should be allowed to consolidate in order to compete better internationally.
The Commerce Commission recently won three high-profile victories across the spectrum of competition law, obtaining record-breaking penalties in New Zealand's largest-ever cartel prosecution, preventing an anti-competitive merger and enforcing a cease and desist order for the first time since its power to do so was introduced in 2001.
The Commerce Commission has recently considered competition in New Zealand markets which involves aspects of two-sided markets. Issues surrounding two-sided markets recently arose in the context of four separate media acquisitions and in relation to the commission's recently completed investigation recommending regulation of mobile termination rates.
Prime Minister Helen Clark used her first address to Parliament in 2006 to identify the implementation of "higher-quality regulation" as her government's priority. Investors in infrastructure are concerned that a light regulatory framework is reducing investment incentives; the debate on reform will also focus on increasing the scope of merit-based appeals against regulators' decisions.
The New Zealand government has accused two companies operating gas distribution pipelines of making monopoly profits. It has imposed direct price control for the first time in the 20-year history of the country's present competition legislation. The decision follows a two-year investigation and consultation process conducted by the National Competition Authority.
The Food Chain Committee has delivered its report on the Norwegian food value chain and its impact on the relationship between producers, suppliers and grocery retailer chains, as well as on consumers' interests. The report identifies several challenges within the chains and suggests a variety of ways to improve competition between, in particular, the grocery retailer chains.
Anti-competitive practices lead to higher prices. But how can a buyer of products and services identify whether the prices charged are a result of such illegal practices? In order to assist procurement officers in both the public and private sectors, the Norwegian Competition Authority has published a list of typical signs of illegal cooperation between suppliers.
The Court of Appeal has overturned a district court decision and found Norway's largest dairy producer guilty of abusing its dominant position. The company maintains that it was merely engaged in price competition, competing on the merits. The Supreme Court has yet to decide whether it will agree to hear the case.
The European Free Trade Association Surveillance Authority has fined Posten Norge AS (the Norwegian Post Office) €12.89 million for abuse of its dominant position. Posten Norge established a post-in-store concept, whereby consumers could pick up their parcels in local shops. Its exclusive agreements with these outlets made it difficult for competitors to establish a competing national network for parcel delivery.
A district court has upheld the Norwegian Competition Authority's decision to impose an administrative fine of Nkr7 million (approximately €890,000) on two contractors that coordinated their bids in a public procurement for the repair of five bridges. By exchanging prices and other sensitive information, the two contractors shared a common understanding that only one of the contractors should win the competition.
The Oslo District Court recently passed a judgment upholding the Competition Authority's administrative fine of NKr400,000 (approximately €50,000) against a trade association for bus charter operators. The verdict is a reminder that not only individual undertakings, but also trade associations are subject to competition law prohibitions. The district court also decided to apply the penal burden of proof for administrative fines.
The Competition Commission has imposed a total penalty of PRs25 million (approximately $250,000) on five universities for advertising unaccredited engineering programmes in violation of Section 10 of the Competition Act, which prohibits deceptive marketing practices. A total of 27 universities were reprimanded for falsely claiming to be either accredited or approved and recognised by the Pakistan Engineering Council.
The compressed natural gas (CNG) sector is an important part of the national economy. However, following mass closures of CNG stations throughout the country and allegations raised of the collusive role of CNG associations in the industry, the Competition Commission has commenced an enquiry into the associations' conduct and authorised investigations of their premises.
Wyeth Pakistan Limited filed a complaint with the Competition Commission that Veet depilatory cream manufacturer Reckitt had claimed in advertisements that "9 out of 10 women prefer Veet" with no reasonable basis for this claim. The commission held that the advertisements violated the Competition Act and recommended that proceedings be initiated against Reckitt.
The Competition Commission recently raided the offices of the Pakistan Poultry Association in Lahore and Islamabad on suspicion of alleged anti-competitive activities, including exorbitant and parallel increase in prices of poultry feed by feed mills in the domestic market.
The Competition Commission has reached conclusions on the role played by 1-Link (Guarantee) Limited, one of two suppliers of automatic teller machine cash withdrawal services in Pakistan, and a number of its member banks in relation to certain fees paid by customers for cash withdrawals. It has also imposed conditions on future decision making on customer charges.
In Pakistan, automatic teller machine (ATM) cash withdrawal services are provided by two networks. The Competition Commission noted that 26 banks were charging a uniform amount for ATM cash withdrawals, despite having different business dynamics. An inquiry committee has set out its conclusions and is reviewing whether to investigate the possible role of the Pakistan Banks' Association.
The Competition Authority recently launched a sector inquiry into restaurant chains that operate under a franchise model. The authority intends to check whether prices for consumers are determined independently by the franchisees running the restaurants. The launch of the proceedings came as a surprise to the business community, although feedback concerning these developments has been limited thus far.
The participation of companies in a consortium can be considered an anti-competitive practice, the Competition Authority recently ruled. This is the first time that the authority has qualified cooperation within the framework of a consortium as an infringement of competition rules. However, no fines were imposed due to the precedential character of the case.
The Competition Authority recently fined IMS Sofa Sp z oo for price-fixing arrangements with its distributors between 2003 and 2012. The fine was reduced by 50% on account of the leniency application that IMS Sofa had submitted. No distributors were fined for the infringement. It is difficult to assess at this stage whether this policy of penalising a supplier only will be followed in future.
The Competition Authority announced its decision to fine Polskie Górnictwo Naftowe i Gazownictwo SA (PGNiG) - Poland's largest domestic gas producer and supplier - PLN60 million (approximately €14.4 million) for alleged abuse of its dominant position. The authority stated that PGNiG had restricted entry to the gas market by refusing to enter into a gas supply agreement with NowyGaz Sp z oo.
The Competition Authority recently announced plans for amendments to the Competition and Consumer Protection Act 2007. If the new bill is enacted by Parliament, the changes will affect, among other things, merger control rules and antitrust enforcement under the act. In the authority's opinion, the proposed changes are essential to enhancing enforcement of the act and increasing legal certainty for businesses.
The Competition Authority has fined a leading insurer, Powszechny Zakład Ubezpieczeń SA (PZU), and insurance broker Maximus for alleged market collusion. PZU descibed the fine imposed on it as "staggering". While recent authority decisions reinforce the trend to impose strict fines, there is also a marked tendency by Polish courts to verify in much closer detail whether such high fines are justified.
Including: Influence of EU Competition Law; Scope of Application; Presumption of Dominance; Abuse of Economic Dependence; Abuse of Economic Dependence; Merger Control; State Aid; Cooperation between Authorities; Increased Investigatory Powers; Increased Transparency.
In a recent preliminary ruling on a referral from the Lisbon Court of Appeal, the European Court of Justice clarified that a regulation adopted by the Portuguese Order of Chartered Accountants which implements a system of compulsory training for its members must be regarded as a decision of an association of undertakings and constitutes a prohibited restriction of competition.
Over the past 10 years, the filing of notifications triggered by ex officio proceedings has been a common feature of the Portuguese competition landscape. In contrast, the imposition of fines for failure to notify has remained rare. However, the Competition Authority recently imposed a significant fine on the National Pharmacy Association and two subsidiaries for implementing a concentration without prior authorisation.
The Lisbon Court of Appeal rendered a judgment which concludes a long antitrust probe directed against a vertical agreement related to the exclusive supply and distribution of hospital equipement entered into in 2005 by Baxter and Glintt. The decision sends an important message to the economic and legal community, in that resale price maintenance can still play a significant deterrent role in competition law.
The Competition Authority's merger review process in a recent case leads to the conclusion that the Portuguese pharmaceutical sector incorporates several relevant markets, including contract sales outsourcing, health management services, brand management and wholesale supply of medicines. The case further illustrates the authority's sound knowledge of the pharmaceutical market.
In numerous jurisdictions leniency has become an important investigative tool for competition authorities, but in Portugal the leniency regime has had a somewhat underwhelming performance in recent years. The reform brought about by the Competition Act should spark renewed interest in the leniency regime, bringing forth new opportunities.
In 2009 Portugal introduced electronic panels on motorways displaying fuel prices at neighbouring service stations to promote price competition in the sale of roadside fuel on motorways. In a recent report the Competition Authority examined the impact of the measure on motorway fuel prices and provided new recommendations for this specific market.
Including: Main laws and regulations; Competent authorities; Economic concentrations; Anti-competitive practices; Abuse of dominant position; Penalties.
The Romanian Competition Council recently launched its second sector inquiry into the pharmaceuticals industry. The inquiry will highlight certain aspects raised by producers' commercial activities in Romania – specifically, the causes of delays in generics entering or penetrating the market and the extent to which the direct-to-pharmacies model fits into the legal framework.
The Competition Council marked the end of 2012 by announcing the conclusion of two investigations into alleged bid-rigging practices surrounding public tender procedures organised by two of Romania's most important public undertakings. In addition, the procedure by which the council took control of the Supervisory Board in the Railway Sector from the Ministry of Transport came to a greatly anticipated end.
Two high-profile investigations into the pharmaceuticals sector have been closed. One, which did not result in penalties, raised the question of when an association's lobbying, for its members' benefit, may amount to an anti-competitive agreement. In the other, pharmaceutical companies Bayer and Sintofarm and certain distributors were fined around €12 million for having concluded anti-competitive agreements.
In what is quickly becoming an established tradition, the Competition Council has issued its third annual report on competition in key sectors of the economy. Focusing on banking, pharmaceuticals and public procurement, it highlights the sensitive sectors that the council may be targeting for investigations and, for the first time, outlines the indicators used by the council in assessing levels of competition in a particular sector.
The modernisation of Romania's competition rules affects a wide array of substantial and procedural matters. New rules on penalties and fines - and the overall benefit to the business environment - are changes for the better. However, amendments on the presumption of dominant position, the right to a hearing and the authorisation fee appear to depart from the EU model.
The Competition Council's new rules seek to enhance competition in the telecommunications sector and harmonise Romania's legal framework with EU rules. Among other things, the council has set out the procedure that it will adopt when assessing an access agreement. More generally, it has clarified the relationship between competition law and sector-specific rules and regulations.
Unlike in most countries, the concept of 'discrimination' in Russian competition law primarily refers to non-pricing conditions. However, although the concept might seem transparent and explicit at first glance, practical application has revealed a number of issues that distort this initial focus of the legal construction of discrimination. Companies should be aware of recent regulatory activity to ensure compliance with the law.
The Competition Authority recently published the results of its sector analysis of the petroleum derivatives markets in Serbia in 2011. The analysis concerns the production, import, export, storage, trade, wholesale and retail of petroleum and petroleum derivatives, as well as various price trend analyses. The authority concluded that there are signs of stronger price competition than in the previous three-year period.
The Competition Authority recently cleared a second attempt at a takeover of Hellenic Sugar Industry SA by Sunoko doo, subject to structural and behavioural measures. The authority claimed its shift in view was due to a change in market conditions. The decision represents the authority's most detailed attempt to conditionally approve a takeover which raises serious competition concerns.
The Commission for Protection of Competition recently issued an opinion on public procurement and consortium agreements between competitors in tendering and public procurement procedures. The commission views consortium agreements as restrictive agreements, which therefore must be submitted to the commission for an individual exemption.
The Competition Authority recently fined Frikom AD €3 million for abuse of its dominant position on the Serbian wholesale ice cream market. The authority also requested that Frikom amend the problematic agreements and provide proof that all critical clauses will be replaced with terms compliant with competition law. Given the amount of the fine, it is believed that Frikom will appeal.
The Administrative Court has annulled a Competition Authority decision prohibiting a concentration between Sunoko doo and Hellenic Sugar Industry SA on the grounds that it lacked sufficient reasoning. It is clear from recent developments that the authority will challenge the Administrative Court's decision before the Supreme Court by lodging an extraordinary legal remedy.
The Competition Authority has failed to approve the proposed concentration between Sunoko and Hellenic Sugar. This decision is particularly important as the proposals demonstrated the depth of investigations conducted by the commission, and provided an insight into the rationale on which the commission based its decision to prohibit the transaction.
The Competition Authority recently presented plans for future reform to the public. According to the plans, the authority's main strategy for the near future focuses on building a modern authority with meaningful policies that will result in clear benefits to the consumer. The most significant measure by which the authority hopes to achieve these aims is a draft amendment to the Competition Act.
The Competition Authority recently adopted a new law amending the Slovakian merger regime. The new merger control regulation, in line with the EU Merger Regulation (139/2004), abandons the dominance test as the substantive test for merger clearance and adopts the substantive impediment of effective competition test. The amendment also revises the thresholds for merger review.
Merger control proceedings in Slovakia are time consuming. Even in straightforward concentrations, the parties must be prepared to face lengthy proceedings before the Competition Authority. As a result, the Slovak merger control rules constitute an inappropriate administrative burden for competitors. However, the Competition Authority is aware of the complications and is willing to amend the existing rules.
The Anti-monopoly Office of the Slovak Republic has imposed a fine of €48,373 on Natur-Pack and 14 waste collection companies for entering into an agreement that restricted competition. The Bratislava Regional Court has also rejected the action of funeral undertaking Marianum against the office's June 2008 decision. By this decision the office had imposed a fine of €237,668.46 on Marianum for abuse of its dominant position.
The start of 2013 was marked by the long-awaited introduction of a new antitrust authority, the Competition Protection Agency. The agency's enforcement priorities will focus on the markets that have the greatest influence on the national economy and those in which it receives the highest number of complaints. The agency has already instigated its first antitrust matter, in proceedings against distributors of natural gas.
The recently published act amending the Competition Act serves to reorganise the main bodies of the still-awaited Competition Protection Agency. However, the agency still has not been officially entered into the Commercial Court Registry and is not yet fully operational. The agency is rumoured to become fully operational by the end of the year, when it will also become an independent user of the national budget.
The Slovenian merger control rules are set out in the Prevention of Restriction of Competition Act 2008, which replaced the 1999 act of the same name. The act sets out substantive and procedural rules governing merger control; in terms of the latter, it is supplemented by the General Administrative Procedure Act. In addition, the contents of the compulsory merger notification form are set out in a government regulation.
The act amending the Competition Act was recently published in the Official Gazette. The new act will bring about the long-awaited reorganisation of the Competition Authority (currently organised as an administrative body within the Ministry for Economic Affairs) as an independent agency. The authority will be governed by the Agency Council, the Competition Council and the agency director.
The Competition Protection Office recently initiated ex officio merger control proceedings against the Federation of Slovenian Retired Persons' Societies. According to the office, the federation had acquired control over Vzajemna Zdravstvena zavarovalnica dvz, a Slovenian mutual health insurance company, but failed to notify the concentration within the statutory 30-day time limit.
In August 2008 the Competition Protection Office found that five Slovenian electricity distributors had breached competition rules by way of a simultaneous price rise. Recently an interesting epilogue was added to the decision: a private initiative led by a Slovenian economist has set a precedent for the future private enforcement of damages in cases of antitrust violations where the harm caused is substantial but widespread.
The Competition Tribunal has issued reasons for its approval of the large merger between Professional Provident Society Insurance Company Limited (PPS) and the Life Disability Insurance Scheme. The merger contemplated the substitution of liability between PPS and Sanlam, which jointly controlled the scheme.
The Competition Commission has referred a complaint relating to an alleged glass cartel to the Competition Tribunal. The commission alleges that the firms referred to in the complaint were involved in price fixing, market allocation and the fixing of trading conditions for float, laminated and toughened glass in the Gauteng, Free State and Western Cape regions.
Telkom and the Competition Commission have reached a settlement regarding Telkom's appeal and the commission's cross-appeal to the Competition Appeal Court relating to a ruling delivered by the Competition Tribunal in mid-2012. The ruling dealt with complaints made against Telkom by the South African Value Added Networks Services.
The Competition Tribunal has ruled that the Competition Commission must furnish further particulars in proceedings pertaining to a complaint referral filed by the commission against cycling wholesalers and retailers. The complaint was filed against 20 respondents for price fixing, stemming from an agreement allegedly reached at an industry meeting.
The Competition Tribunal recently approved a consent agreement between the Competition Commission and Egoli Gas. The agreement will result in Egoli paying an administrative penalty of more than R1.6 million for contravening the Competition Act by entering into a series of agreements with Sasol Gas which contained customer and territorial restraints.
The Competition Tribunal recently granted the Competition Commission leave to amend a complaint referral by way of a supplementary affidavit in relation to a complaint of alleged predatory pricing against Media24. The commission claimed that the amendment was justified as new evidence had emerged that had not been made available to the commission at the time that the complaint referral was drafted.
The Korea Fair Trade Commission recently took corrective measures regarding a number of business combinations. Following concerns arising from an acquisition in the technology sector, the commission ordered the acquirer to organise a sale of its major assets. The commission also imposed fines on foreign enterprises for failing to file a report on their business combinations, amounting to KRW90.3 million across five cases.
The commencement of a new administration under President-Elect Park Geun-hye next month is expected to lead to drastic changes in government policies, including the eradication of unfair business practices. The Fair Trade Commission has joined the incoming government's drive for economic democratisation by drawing up a blueprint to execute these policy changes in the competition field.
The Competition Authority's concerns regarding the competitiveness of the food sector have finally prompted the government to trigger reforms in the legal framework. The enactment of new legislation and the authority's determination to continue promoting effective competition in the food production sector will doubtless have a positive impact on a sector that is not as competitive as it potentially could be.
Following an in-depth investigation, the Competition Authority has unconditionally cleared AstraZeneca's proposed divestment of its subsidiary AstraZeneca Tika SNC – a portfolio of over-the-counter products – to GlaxoSmithKline. Both companies manufacture and sell, among other things, non-prescription drugs for pain and fever.
The Competition Authority has ruled that an order issued by the Market Court in 2001 prohibiting Scandinavian Airlines Systems from applying its EuroBonus can no longer be enforced. It did not examine whether such reintroduction of the scheme on routes exposed to competition would represent an infringement and it is for the airline to assess on what routes the scheme can now be applied.
The Stockholm District Court has dismissed an application by the Competition Authority to block a merger between hardware manufacturers Assa Abloy and Copiax because the action was not filed within three months of an in-depth investigation being launched. The authority has decided not to appeal the decision and the merger will now go ahead.
The government has commissioned the Competition Authority to present specific proposals for strengthening competition on the basis of a broad review of the competitive situation in Sweden. The authority provides reports to the government on a regular basis, but this new project is more wide ranging and includes reviews and presentations of both existing and new proposals.
Parliament has voted in favour of the government's plan to part-privatize the monopoly chain of state-run pharmacies, Apoteket, and open up the country's market for prescription and non-prescription drugs to competition. In doing this, Parliament has given the government the green light to begin the restructuring process for Apoteket.
Including: Unlawful Agreements; Abuse of Dominant Position; Procedure; Sanctions; Swiss Law and EU Law; Merger Control; Merger Appraisal
The Competition Commission recently launched an investigation into whether the Federal Act on the Internal Market represents sufficient legal basis for notaries public to benefit from free movement between Swiss cantons. The introduction of free movement within the European Union may lead to unequal treatment of Swiss notaries public compared with their counterparts in the European Union.
The Competition Commission recently launched an investigation into the subscription television live sports broadcasting sector. The preliminary investigation found indications that Swisscom and Cinetrade, together with their subscription television provider, Teleclub, may have violated certain clauses of the Competition Act related to abuse of dominant position.
The Supreme Court recently confirmed a fine of Sfr2.5 million imposed on PubliGroupe SA by the Competition Commission for abuse of a dominant position. The court found the conditions of unlawful practice by a dominant undertaking pursuant to the Competition Act to have been fulfilled. The court's approach may prove useful in better equipping the competition authorities to address anti-competitive behaviour.
The Federal Competition Commission (FCC) recently imposed a fine of Sfr6.2 million on four international freight forwarders for agreeing on user fees and surcharges in air freight services. The investigation, opened by the FCC in 2007, established that the freight companies had agreed to fix fees and surcharges in the field of international freight services between 2003 and 2007.
The Swiss section of the International Federation of the Phonographic Industry and Phononet AG recently reached an amicable settlement with the Competition Commission over an investigation into alleged restrictions of parallel imports. The commission has announced that it will fight any contractual provisions aimed at foreclosing the Swiss market.
The Competition Commission recently fined German company BMW Ltd for preventing direct and parallel imports into Switzerland. BMW was held to have foreclosed the Swiss market by prohibiting its dealers in the European Economic Area from selling new BMW and MINI cars to Swiss customers. BMW has announced that it will appeal the commission's decision.
Including: Competition Authority; Competition Board; Prohibited Activities; Penalties.
In a further indication that modernisation will be one of the Competition Authority's top priorities in 2013, it recently issued secondary legislation concerning the merger control regime. The revised guidelines reflect the changes introduced to the merger control regime in recent months, including amended turnover thresholds and the removal of the 'affected market' criterion in notifiability analysis.
Following the introduction of the Regulation on Active Cooperation for Discovery of Cartels, the Competition Authority has issued a set of guidelines, which aim to provide certainty in interpretation, reduce uncertainty in practice and provide guidance for undertakings so that applicants can benefit from the leniency programme more efficiently, as a requirement of the transparency principle.
After almost two-and-a-half years of investigation, the Competition Board recently announced the outcome of its high-profile investigation against 12 Turkish banks. The total fine amounted to an unprecedented TRY1.1 billion and broke a number of records in the process, including single-handedly surpassing the sum of all fines imposed in the history of Turkish antitrust enforcement.
The appellate court has ruled that a recent Competition Board decision demonstrated a lack of sufficient justification concerning the determination of the basic level of a fine and the effects of mitigating or aggravating factors on the calculation of such fine. The ruling offers an preliminary insight into the way in which the higher administrative courts will interpret the board's application of the law concerning such fines.
Ever since the Competition Authority amended the communiqué setting out mergers and acquisitions subject to approval, it had been debated whether the revised jurisdictional thresholds would decrease the authority's workload in relation to merger control cases. As soon as figures were available, it became clear that the TRY5 million threshold for approval was too low; therefore, the authority has now amended the thresholds.
The most significant development with respect to competition law in Turkey over the last two months is the announcement for public consultation of two important secondary legislative instruments. While these are still in draft form and have not been conclusively enacted by the authority, they point towards the authority's increased willingness to create greater predictability with respect to horizontal cooperation.
A proposal has been submitted to Parliament that would significantly amend the Law on Protection of Economic Competition. Among other things, it would simplify the criteria for a presumption of dominant position, redefine the threshold for concentrations and raise the thresholds for merger clearance.
The Anti-monopoly Committee has strengthened its cooperation with the Ministry of Internal Affairs in anti-cartel operations. A new agreement will enhance ongoing consultations and exchange of information during investigations. However, a better option would be to entrust the committee with greater powers, such as those exercised by the US Antitrust Commission in the Department of Justice.
Parliament has approved two draft laws on first reading. The first includes provisions to increase minimum penalties for anti-monopoly infringements. The second addresses jurisdictional issues between the administrative and commercial courts in cases involving the Anti-monopoly Committee; it may help entities that compete fairly to obtain immediate enforcement of commercial court decisions.
In recent months the Anti-monopoly Committee has kept an increasingly close watch on competition-related information from Ukrainian and foreign news sources and other antitrust regulators. The approach is in line with a new draft law, which also sets out the committee's right to request information - including data covered by bank secrecy - from legal entities or private individuals.
The Law on Public Procurement has come into force, introducing new rules to make public procurement procedures non-discriminatory and more transparent. It sets out new duties for the Anti-monopoly Committee, which is vested with the authority to review disputes arising out of public procurement procedures.
The plans of Telenor ASA and Altimo Holdings & Investments Ltd to merge the mobile phone operations of their assets Kievstar and Russian company Vimpelcom have been frustrated by the new approach taken by the Anti-monopoly Committee. The committee recently stayed its decision to approve the concentration of Telenor and Altimo's assets, and began proceedings to reconsider that decision.
A recent judgment of the Court of Appeal provides clarification of the statutory provisions relating to the still relatively infrequently used right to bring follow-on damages actions under Section 47A of the Competition Act 1998. The dispute derived from a European Commission infringement decision regarding a price-fixing cartel in relation to the sale of vitamins for use in animal feedstuffs.
A number of the reforms included in the recent Budget Report 2009 have a potential impact on competition law and regulation. For example, in order to lower energy prices and encourage competition across the entire sector, the government is proposing a number of reforms.
The Competition Commission and the Office of Fair Trading have published a review of merger decisions under the Enterprise Act 2002. The report provides the first methodical examination of the act's implementation regarding merger decisions. It concludes that the decision-making process has generally been sound, but that certain concerns may need to be addressed when revising merger guidelines.
The Office of Fair Trading and the Competition Commission have published a memorandum of understanding outlining their working practice for the review of merger, monopoly and market undertakings and orders. It sets out a transparent framework for every stage of the review of undertakings and orders, thereby giving parties subject to such remedies a clearer point of reference for the processes involved.
After much debate as to whether it should hear the case, the Court of Appeal has ruled in favour of the Office of Communications (OFCOM) and T-Mobile in relation to an appeal against an order of the Competition Appeal Tribunal. The tribunal had upheld OFCOM's overall non-infringement decision; however, it had also taken the unusual step of setting aside parts of the decision.
Following an application for judicial review, the Administrative Court has ruled that the Office of Fair Trading (OFT) acted reasonably in closing a Competition Act investigation. This is the first time that the Administrative Court has ruled on the OFT's discretion to close a case on administrative priority grounds.
Including: Federal Antitrust Agencies; Federal Merger Enforcement; Federal Non-merger Civil Enforcement; State Antitrust Enforcement; Private Antitrust Litigation
The US Department of Justice's Antitrust Division recently announced that the division will change its practice and no longer publicly list the names of individuals excluded (or 'carved out') from the protections afforded by corporate plea agreements. In the statement, the division also announced that in the future it will limit its use of carve-outs to individuals whom it suspects may be guilty of a crime.
The Supreme Court recently rejected a class of millions of Comcast subscribers seeking nearly $1 billion in antitrust damages, holding that at the class certification stage, district courts must conduct a rigorous, merits-based analysis of any damages model that purports to show that damages are "measurable on a class-wide basis through use of a common methodology".
In a unanimous and favourable decision for the Federal Trade Commission (FTC), the Supreme Court has found that the state action immunity doctrine does not shield Phoebe Putney Health System's acquisition of Palmyra Park Hospital from antitrust scrutiny, sending the parties back to FTC administrative litigation to battle over the legality of the hospital merger.
The Department of Justice has filed a lawsuit against Bazaarvoice Inc's acquisition of PowerReviews Inc, despite the transaction's relatively small size and the fact that the parties completed it over six months ago. The suit underscores the federal agencies' increased scrutiny of completed mergers and acquisitions in recent years, as well as the significance of so-called 'hot' documents to investigations.
The Federal Trade Commission has released the annual jurisdictional adjustments for pre-merger notification filings made pursuant to Section 7A of the Clayton Act, known as the Hart-Scott-Rodino Antitrust Improvements Act 1976, as well as for Section 8 of the Clayton Act. The new thresholds for Hart-Scott-Rodino notification will become effective on February 11 2013.
A recent line of cases suggest that the cooperative selling of jointly owned intellectual property through a lawful joint venture may enjoy certain antitrust protections, whereas the cooperative selling of singularly owned property through the same joint venture may be open to challenge under Section 1 of the Sherman Act. Companies should monitor such cases closely to assess potential antitrust risks that may arise.
The Pro-competition Superintendency has approved TIM International NV's sale to Telvenco of the shares of the corporate capital of Digitel (the third-largest mobile phone operator in Venezuela) and the merger of Digitel with regional telephony service providers Digicel, Infonet and Digital Celular.
The draft Law Against Monopolies, Oligopolies and Unfair Competition is undergoing a period of public consultation. It incorporates significant amendments to the Law to Promote and Protect Free Competition, which is currently in force, and the various previous draft competition laws that had been presented for consideration to the National Assembly in the last few years.
The Pro-competition Superintendency has held that an advertising campaign to launch a new brand of the main mobile telephony operator in Venezuela did not constitute an act of unfair competition. The decision confirms the superintendency's view that the mere simulation or imitation of an advertising initiative is not sufficient to prove unfair conduct.
The Pro-competition Superintendency has recently ruled on cartel practices by the two major Venezuelan television broadcasting companies. It found clear evidence of concerted conduct between the two broadcasters in the sale of advertising space in open television.
The Pro-competition Superintendency has announced that it is investigating several complaints received recently. Among these is a complaint filed by the National Chamber of Communication Centres against telephone company CANTV, alleging that CANTV abused its dominant market position and restricted free competition.
The National Telecommunications Commission has refused to approve the acquisition by CANTV of the shares owned by TIM International BV in Corporación Digital CA. The Pro-competition Superintendency had previously held that the transaction would restrict competition.