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Albania
Overview >
Including: merger guidelines; non-horizontal mergers; horizontal mergers.Impact of new administrative contraventions law on competition offences
22/07/2010 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.
Competition Law to be revamped
06/05/2010 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.
Competition Authority Implements Law Provisions on Restrictive Agreements
01/11/2007 The Competition Authority is a public independent authority established under Law 9121/2003 on Competition Protection. The law aims to harmonize the national legislative framework with EU law, and from the moment the law was enacted particular attention was given to the role of the Competition Authority in the implementation process.
Algeria
Regulatory Reform: Anything New under the Sun?
22/01/2009 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.
Argentina
A 'Beyond the Borders' Interpretation of the Antitrust Law
04/06/2009 The National Commission for the Defence of Competition recently unveiled a new interpretation of the applicable exemptions to the mandatory notification procedure set out by the Antitrust Law. According to a new advisory opinion issued by the commission, in certain cases the global value of the transaction, as well as the value of the assets that are being transferred, should be taken into account.
Antitrust Commission Clears Major Deal in Retail Industry
26/03/2009 The National Commission for the Defence of Competition recently authorized an important transaction in the retail industry involving two of the largest supermarket and hypermarket chains in Argentina. The authorization is significant because it involved an in-depth analysis of the definition of relevant markets for the retail and product supplier sectors.
Antitrust Commission Rejects Cartel Accusation
15/01/2009 The National Commission for the Defence of Competition recently rejected an accusation initiated by a distributor of liquid gas against a producer of liquid gas alleging infringement of the Antitrust Law. The distributor claimed that the producer had exercised its dominant position in order to prevent the distributor from buying liquid gas from other companies.
Monsanto Succeeds with Noerr-Pennington Defence against Antitrust Claims
06/11/2008 The National Court of Appeals for Civil and Commercial Federal Matters recently overruled a decision from the National Commission for the Defence of Competition to investigate Monsanto Technology LLC and Monsanto Argentina SAIC for potential infringement of competition law due to their enforcement of certain patent rights outside Argentina.
Court of Appeals Overrules Cartel Penalty
21/08/2008 The Federal Court of Appeal of the City of Posadas, Province of Misiones recently revoked a penalty imposed by the secretary of domestic trade and the National Commission for the Defence of Competition on two natural gas supplier companies that were accused of forming an alleged cartel for market distribution.
Supreme Court Finally Dismisses Challenges to Validity of Enforcing Agency
12/06/2008 The National Supreme Court of Justice recently issued a decision in a case that has been widely discussed over the last four years. The decision is important as it ends the discussions about the valid enforcing agency for antitrust matters and the necessary quorum for the National Commission for the Defence of Competition to reach decisions.
Australia
Extraterritorial Activity within Reach of ACCC Information-Gathering Powers
30/04/2009 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.
Bill to Criminalize Cartel Conduct Revised and Revised Immunity Policies Released
18/12/2008 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.
Amendments to Trade Practices Act to Affect Misuse of Market Power
27/11/2008 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.
Revised Draft Legislation Proposes to Criminalize Cartel Conduct
13/11/2008 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.
Exclusive Dealing and Deceptive Conduct Alleged in Telecommunications Industry
30/10/2008 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.
ACCC to Lead Review of Grocery Prices
20/03/2008 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.
Austria
Overview >
Including: Reform; General Procedure; Cartels; Vertical Restrictions of Distribution; Merger Control; Dominant Market Position.Federal Cartel Authority searches law firm's office
29/07/2010 In 2009 the Supreme Court authorised the search of an Austrian company's premises to investigate possible cartel law infringements relating to the German fire engine market. Recently, in dealing with the same alleged infringement, the court issued a decision on the preconditions for searching the offices of attorneys who represent possible cartel members
More house searches under Cartel Law?
17/12/2009 The Supreme Court, acting as Higher Cartel Court, recently rendered its first decision on the preconditions for the Federal Cartel Authority to conduct house searches in Austria on behalf of other EU antitrust authorities. The decision allows for the execution of house searches in Austria even in cases that do not affect the Austrian market.
Non-discrimination Rule to Apply to Everyone
08/10/2009 In 2008 and 2009 the Supreme Court, acting as Higher Cartel Court, rendered rare decisions on the basis of the Local Supply Act. These controversial decisions may have significant consequences for the qualification of undertakings' discriminatory practices.
No Declaratory Decisions against Principal Witnesses
16/07/2009 The Supreme Court, acting as Higher Cartel Court, recently confirmed a second Cartel Court fine decision based on the 2006 leniency programme. According to the Supreme Court's decision, in future, before filing its applications with the Cartel Court, the Federal Cartel Authority will have to examine in detail whether the preconditions for accepting an undertaking under the leniency programme have been met.
Third-Party Contracts Continue Infringement
23/04/2009 The Supreme Court, acting as the Higher Cartel Court, recently rendered a new decision on a previous infringement of antitrust law that had ongoing effects. The case involved the allegedly abusive promotion of contracts no longer available on the market by the defendant.
Cartel Court Offers No Simple Way of Obtaining Damages
18/12/2008 The Supreme Court has upheld two Higher Regional Court of Vienna (as Cartel Court) decisions and ruled on the preconditions for receiving a declaratory decision on past infringements of antitrust law. Damages claims following a fine decision in cartel matters must be filed in the civil courts under the rules of civil procedure, without additional assistance from the cartel authorities and the Cartel Court.
Belgium
Investigation reveals possible agreements or concerted practices in BSE testing
19/08/2010 The College of Competition Prosecutors has reported to the Competition Council on the existence of agreements or concerted practices between laboratories that carry out bovine spongiform encephalopathy tests in Belgium. The report suggests that several slaughterhouses and a government agency - the Federal Agency for the Safety of the Food Chain - were also involved.
Antitrust enforcement: radiator manufacturers feel the chill
08/07/2010 The Competition Council has fined four Belgian steel plate radiator manufacturers - Masco, Quinn, Caradon and Radson (now called Rettig) - for participating in a cartel in the steel plate radiator market in Belgium. The council decided to impose a total fine of over €3.5 million on the cartel members; however, as the first whistleblower, Masco was given full immunity.
Abuse of dominance claim against incumbent Belgacom rejected
06/05/2010 The College of Competition Prosecutors has rejected a complaint by telecommunications company Base against incumbent operator Belgacom for alleged abuse of dominant position. The decision follows proceedings before the Competition Authority regarding Belgacom's abuse of dominant position, which ended in Belgacom's subsidiary Proximus receiving the highest fine ever imposed by the Competition Council.
A fair hearing? Competition Council rules on impartiality
22/04/2010 In two recently published rulings the General Assembly of the Competition Council considered a challenge to two councillors that arose from a claim of abuse of dominant market position. Telecommunications operator KPN Belgium argued that one councillor had opined on the case when ruling on a request for preliminary measures, while another had previously worked for one of the companies involved.
Ferrero faces price-fixing inquest
21/01/2010 An investigation that began two years ago in Germany, where the competition authorities examined the activities of Ferrero, Kraft, Nestlé and Mars, has led to investigations by Belgium's Competition Authority in the chocolate and confectionery sector. The Competition Council has now received a report into alleged price fixing between Ferrero and three Belgian supermarket chains.
Kinepolis: Competition Council's Cut of an Ongoing Cinema Saga
12/11/2009 The Competition Council has issued the latest in a series of decisions involving Kinepolis, Belgium's leading cinema chain. Its summary of the long-running dispute demonstrates the council's decisional workings, illustrates its discretion to give a third party partial access to a case file and goes to the heart of issues that are still being considered in the case.
Bosnia and Herzegovina
Competition Council fines Optima €100,000 for failure to notify acquisition
01/07/2010 The Competition Council has cleared the acquisition by the Optima Group of eight petrol stations located in Bosnia and Herzegovina. However, the council imposed a €100,000 fine on Optima for breaching the Competition Act by failing to notify the transaction to the council within the statutory 15-day deadline and implementing the transaction irrespective of the suspension obligation.
Merger control rules amended
25/03/2010 Amendments to the Competition Act have been adopted, in particular in relation to merger control rules. The amendments stipulate new merger notification thresholds, extend the notification deadline and reinforce the suspension clause with a fine for closing a transaction prior to obtaining formal clearance of up to 10% of the total annual turnover of the undertaking in question.
Brazil
Overview >
Including: Mergers; Administrative Processes; Preliminary Investigations; Flow of Cases; Comment.New regulation on the Brazilian leniency programme
29/04/2010 The Secretariat of Economic Law of the Ministry of Justice recently published a new regulation on procedural rules in competition matters - in particular, those governing the leniency programme. Pursuant to the new regulation, the marker system is clearer and more transparent and no longer requires that parties seeking a marker provide information about leniency applications in other jurisdictions.
CADE publishes four new digests
04/02/2010 At the end of 2009 the president of the Administrative Counsel for Economic Defence submitted to the board four proposals for new digests. The proposals were unanimously approved and published in the Official Gazette. The new digests are an important initiative from the antitrust authorities to ensure legal certainty and to keep companies, individuals and lawyers better informed as to how to proceed in certain situations.
CADE Imposes Record Fine on AmBev
15/10/2009 The Administrative Council for Economic Defence (CADE) recently fined AmBev R352.7 million for anti-competitive conduct in the beer market. This is the highest fine that CADE has imposed on a company. CADE considered that AmBev's reseller loyalty and subsidy programme had the potential to harm competition, close the market and artificially increase competitors' costs.
Secretariat of Economic Law Publishes Anti-cartel Statistics
23/07/2009 The Secretariat of Economic Law (SDE) of the Ministry of Justice recently published a detailed report of its activities in 2008. The statistics demonstrate that the SDE has made some major improvements in its interaction and cooperation with the federal and state police and the federal public prosecutors in order to strengthen anti-cartel enforcement in Brazil.
CADE Confirms Previous Interpretation of Filing Criteria
07/05/2009 The Administrative Counsel for Economic Defence has issued a decision confirming its previous interpretation of the filing criteria set out in Law 8,884/94. If the new interpretation of the criteria becomes binding precedent, the number of transactions which will require a merger filing will be reduced.
Proposed Changes to Merger Filing Review Procedures
30/04/2009 The Administrative Council for Economic Defence (CADE) is consulting on a bid resolution which would create Article 101-A in the CADE Rules of Procedure. According to the proposal, merger filings which are currently considered through the trial block proceeding could be decided by a decision of the reviewer, ad referendum of the plenary session, rather than by a decision taken by all seven commissioners.
Bulgaria
Commitments in antitrust proceedings
08/07/2010 The Commission on the Protection of Competition adopted the Rules on the Examination of Proposals for Commitments under the Law on the Protection of Competition. The new competition act stipulates that investigations have two phases. At the end of the first phase, if there is sufficient evidence of an infringement, the commission will prepare a statement of objections and start an in-depth investigation.
Appeal court quashes commission's cartel decisions
25/03/2010 During 2007 and 2008 the Commission for Protection of Competition conducted six cartel investigations in different sectors. Following five of the investigations the commission imposed fines for price fixing and the exchange of sensitive commercial information. Two of these decisions have been upheld by the courts and are now binding.
Canada
Overview >
Including: Amendments to the Competition Act; Guidelines and bulletins; Enforcement activity; Private actions.Competition Bureau recent developments
29/07/2010 The Competition Bureau has released policy documents that are designed to increase transparency in its review processes and provide greater clarity to stakeholders. In addition to the draft Fee and Service Standards Handbook for Merger-Related Matters, the bureau recently issued a policy on disclosure of information in hostile transactions and a memorandum of understanding with the Department of Public Prosecutions.
Amendments to the Notifiable Transactions Regulations
15/04/2010 Amendments to the Notifiable Transactions Regulations made under the Competition Act recently came into force. These amendments reflect the March 2009 legislative amendments to the act. Among other things, the amended regulations create a uniform notification form for all transactions and modify the prescribed information that must be supplied to the commissioner with a pre-merger notification filing.
Commercial agreements among competitors: new antitrust regime coming
18/02/2010 The Competition Act prohibits various kinds of anti-competitive behaviour, including commercial agreements among competitors that have anti-competitive effects. Amendments to the act that were passed in March 2009, but will come into effect only in March 2010, make significant changes to the way commercial agreements are analyzed and challenged by Canada's antitrust regulator, the commissioner of competition.
Misleading Advertising and the Competition Act: Claims Must Be Kept Current
14/01/2010 A recent decision of the British Columbia Supreme Court illustrates the powerful recourses available under the sections of the Competition Act that prohibit false and misleading advertising. The case also emphasizes the difficulties inherent in undertaking comparative advertising claims in Canada, particularly in an environment where a competitor's products continue to develop and change.
Possible Change in Canadian Landscape for Price-Fixing Class Action Certification
10/12/2009 Two recent decisions in Ontario and British Columbia to certify class actions alleging price fixing indicate that Canadian courts may be adopting a new approach to these types of claim, potentially opening the door to more litigation in this area. These are the first class actions based on a multilateral price-fixing conspiracy that have been certified in Canada when certification has been contested by the defendants.
Competition Bureau Publishes Final Merger Review Process Guidelines
22/10/2009 The Competition Bureau has published its final Merger Review Process Guidelines, describing the bureau's approach to Canada's new two-stage merger review process adopted following the March 2009 amendments to the Competition Act. The guidelines express a commitment to minimizing the burden of supplementary information requests on merging parties and stress that the preferred approach is cooperation.
Chile
Antitrust Commission Gives Trademark Warning
15/03/2001 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.
Bank Mergers to be Closely Supervised
25/01/2001 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.
Local Wireless Telephone Service Bidding
09/11/2000 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.
Imitations may be Unfair Competition
20/04/2000 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.
China
Anti-monopoly regulator addresses competition regime controversies
02/09/2010 The Ministry of Commerce recently held a press conference regarding the development of anti-monopoly regulation in China. The head of the Anti-monopoly Bureau answered questions from journalists and, for the first time in the two years since the Anti-monopoly Law was implemented, clarified some of the controversial aspects of the competition regime, including the perceived bias against foreign companies.
Conditional approval for Novartis's acquisition of Alcon
26/08/2010 The Ministry of Commerce's Anti-monopoly Bureau has approved Novartis's acquisition of Alcon. Among other conditions, Novartis is required to cease sales of the anti-infection and anti-inflammatory drug Infectoflam in China by the end of 2010. Its subsidiary, CIBA Vision Shanghai, must terminate its sales and distribution agreement for contact lens care products with the largest player in the Chinese market.
Divestiture rules highlight importance of choosing the right trustee
22/07/2010 The Ministry of Commerce has released the Provisional Rules on Implementing Divestiture of Assets or Businesses, which set out the roles of supervisory trustees and divestiture trustees, drawing on EU and US models in doing so. Although they leave certain conflict of interest issues unresolved, the rules represent a significant step forward for a rapidly developing concentration review regime.
New draft rules on monopoly agreements and abuse of dominant position
01/07/2010 The State Administration of Industry and Commerce (SAIC) has published for public comment new draft regulations on monopoly agreements, abuse of dominant position and administrative monopoly. The SAIC has a mandate to condemn non-price-related monopoly agreements, non-price-related abuse of dominant position and administrative monopoly, and to lay down implementing rules for the Anti-monopoly Law.
Leniency policy starts to take shape
24/06/2010 A leniency programme can be an effective tool in exposing cartels. However, China's
Anti-monopoly Law makes only a passing reference to a leniency policy, leaving the antitrust authorities to fashion rules to implement the policy. The Draft Regulation on Prohibiting Monopoly Agreements brings an effective leniency policy closer, but several key questions remain unanswered.
Croatia
Competition Agency approves latest mergers
26/08/2010 The Competition Agency has given final approval to the Mol/INA merger, finding that the structure of the relevant market showed that there would be no negative competitive effect. In addition, the merger between Atlantic Grupa and Droga Kolinska and the joint venture controlled by Merck & Co and Sanofi-Aventis have been approved.
Mol/INA merger faces further difficulties
01/07/2010 The most high-profile current merger case in Croatia involves a horizontal merger between Mol Hungarian Oil and Gas Public Limited Company and INA – Industrija nafte dd. Although the merger was conditionally cleared by the Croatian Competition Agency in June 2009, certain conditions remain to be fulfilled.
New act gives greater powers to Competition Agency
08/04/2010 The new Competition Act will enter into force on October 1 2010 and will affect all aspects of competition law. For the first time, the Croatian Competition Agency will be empowered to conduct unannounced inspections of undertakings that are accused of infringing competition rules. The agency will also be able to impose fines directly.
Cyprus
Abuses of dominant position in the telecommunications sector
01/07/2010 The Cyprus Telecommunications Authority is a semi-governmental organization responsible for the provision, maintenance and development of telecommunications services and facilities. However, in most respects the telecommunications sector is firmly under the monopoly control of the authority. Thus, the Commission for the Protection of Competition has had cause to investigate and fine the authority.
Implementation of merger control
18/02/2010 The Control of Concentrations Between Enterprises Law sets out regulations in relation to merger control issues in Cyprus. It provides rules by which reorganizations by corporate companies in the form of concentrations are controlled in order to ensure that such concentrations do not result in distortions of market structure.
Changes to Competition Law to Combat Cartels
22/10/2009 Cartels are considered to be the most serious form of competition law violation, against which regulatory authorities across the world have been waging hostile campaigns. However, adopting competition laws with tough penalties has not been sufficient to suppress cartel activity. This update discusses the changes that have been made to competition law in Cyprus in order to combat cartels.
Czech Republic
Latest decisions and fines from the Office for the Protection of Competition
15/04/2010 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.
Denmark
Market Share Agreement Accepted in Highly Regulated Industry
20/09/2007 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.
Competition Report 2007 Suggests Revision of Merger Threshold Values
23/08/2007 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.
Council Takes Action against Illegal Bank Cartel
21/06/2007 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.
Council and Appeal Board Conflict over Market Definition
31/05/2007 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.
New Competition Act in the Pipeline
12/04/2007 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.
Transformation to Centralized Capital Chain Established Dominant Position
01/03/2007 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.
El Salvador
New Legislation Establishes Competition Regulator
26/10/2006 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.
Bill on Free Competition Makes its Way through Parliament
31/07/2003 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.
Estonia
Competition Board Clears Merger of Two Leading Directory Media Companies
19/11/2009 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.
State-Owned Electricity Monopoly Fined for Abuse of Dominant Position
10/09/2009 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.
Investigations into Water Companies Initiated
28/05/2009 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.
Draft Leniency Programme Prepared
05/03/2009 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.
Competition Board Initiating More Investigations Than Ever
20/11/2008 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.
Energy Monopoly Subsidiary Accused of Abuse of Dominant Position
11/09/2008 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.
European Union
New insurance block exemption: insurers lose privileges
15/04/2010 At the last moment before the expiry of the previous block exemption regulation for the insurance sector, which has been in force since 2003, the European Commission has adopted EU Regulation 267/2010. As expected, the commission has restricted the freedom that insurers have enjoyed in the past with the introduction of a new regulation, thereby increasing legal uncertainty.
Commission publishes study on quantification of damages
04/02/2010 The European Commission has published an external study on the quantification of antitrust damages. This issue is of central importance to all antitrust damages claims. The study "Quantifying antitrust damages – towards non-binding guidance for courts" was drawn up by Oxera Consulting Ltd in collaboration with a team of lawyers and economists.
Plans for Private Antitrust Damages Actions Directive Suffer Setback
05/11/2009 The European Commission's plans for a directive on private antitrust damages actions suffered a setback when the commission was forced to postpone the initiative. The leaked June 2009 draft gives an indication of its views on issues such as representative actions and the opt-out implications. However, it remains to be seen what new proposals will be made once the new commissioners are in office.
European Commission Imposes €20 Million Fine for Failure to File Transaction
27/08/2009 The European Commission has imposed a fine of €20 million on a company which infringed its obligation to file a transaction prior to implementation, despite no competition concerns having been raised by the transaction. Given the recent tendency of competition authorities to impose ever-increasing fines for procedural breaches, companies should be careful when examining their filing duties under EU regulations.
European Commission Imposes Highest Ever Competition Fine
18/06/2009 The European Commission has imposed a fine of €1.06 billion on Intel for allegedly abusing its dominant position (under Article 82 of the EC Treaty) on the worldwide market for x86 central processing unit computer chips from October 2002 to December 2007. The fine is the highest ever imposed on one company for infringement of the EC competition rules.
Commission Plans Private Antitrust Enforcement Directive
11/06/2009 It has recently become known that the European Commission is to propose a directive on rules governing damages actions for infringements of Articles 81 and 82 of the EC Treaty. The proposed directive seeks to promote private antitrust actions and would require EU member states to introduce various new measures into their national laws.
Finland
Overview >
Including: Regulatory Framework; Cartels and Other Horizontal Competition Restraints; Abuse of Dominant Position; Penalties; Leniency; and Merger Control.Government proposes new Competition Act
26/08/2010 The government has proposed a new Competition Act. Under the proposal, a new test to be used in the merger control procedure will be introduced and new rules on fines and damages implemented. The law is expected to enter into force at the beginning of 2011.
Market Court Fines Forestry Companies for Cartel Activity
07/01/2010 The Market Court has ruled that between 1997 and 2004 the forestry companies Metsäliitto Cooperative, Stora Enso and UPM-Kymmene were guilty of national price cooperation and exchanging information regarding the purchase of timber. The court imposed fines totalling €51 million for violating the Competition Act.
France
Commitments procedure clarified, but uncertainty remains regarding limits
05/08/2010 The commitment procedure allows undertakings to resolve the competition concerns contained in the Competition Authority's preliminary assessment and to propose commitments in order for companies to avoid being penalised for restrictive agreements or abuses of dominance.
Damage to economy cannot be presumed merely from a cartel's existence
27/05/2010 The Commercial Chamber of the Court of Cassation has issued its second ruling in the ongoing mobile phone litigation. In contrast to an earlier appeal court decision, the Court of Cassation - overturning the case law on the issue - considered that damage to the economy could not be presumed merely from the existence of a restrictive agreement.
Competition Authority may prosecute even below de minimis threshold
08/04/2010 The Paris Court of Appeal has upheld a vertical restraints objection against SNCF, which holds a monopoly on the French railway transport market, and a travel agency. The court ruled that the fact that the contested practices restricted competition within the meaning of the regulation, but did not exceed the legal appreciability threshold, did not preclude the national competition authority from taking action.
France Telecom punished for anti-competitive practices on mobile markets
28/01/2010 Five years after the interim measures against Orange Caraïbe aimed to put an end to exclusivity deals, loyalty-inducing practices and price discrimination liable to fall foul of the Commercial Code and the EC Treaty, the Competition Authority has imposed a substantial fine on the France Telecom group. The decision reflects the authority's desire to implement EU law as broadly as possible.
Reversal of Case Law: Excessive Duration May Nullify Competition Proceedings
03/12/2009 In a recent case the Paris Court of Appeal clarified the extent to which excessive duration of the investigation procedure can weaken the effectiveness of the rights of defence in the second phase of the procedure, so as to nullify both the investigation and the final decision.
Bidders Must Maintain Autonomy with Respect to Project Contractors
29/10/2009 Following convictions for exchanges of information prior to several competitive tender invitations, the Competition Authority took the opportunity to define the obligations of undertakings bidding in a permeable market. In the authority's view, such exchanges of information between competing undertakings present a threat to competition.
Germany
Overview >
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.Settlement in administrative fine proceedings regarding cartel cases
11/03/2010 Unlike the Public Prosecutor's Office, which is obliged to prosecute criminal offences (under the so-called 'mandatory prosecution' principle), in cartel cases it is up to the cartel authorities to decide on the institution and conduct of administrative fine proceedings according to their own judgement (the so-called 'discretionary prosecution' principle).
Selective distribution: can a manufacturer prohibit the sale of its goods on eBay?
25/02/2010 The Karlsruhe Higher Regional Court recently decided that a brand manufacturer could forbid authorized dealers in a selective distribution system to sell its high-quality products on internet auction platforms. The court held that such prohibition does not infringe competition law if it aims to maintain the brand image and the quality of the distribution network. If a dealer refuses to comply, the manufacturer may suspend delivery.
Dawn raids: Federal Cartel Office scrutinizes market for consumer products
28/01/2010 The Federal Cartel Office has carried out large-scale dawn raids in the consumer products sector. It inspected a total of 15 undertakings – 11 large retailers of food, drugstore products and pet food as well as four brand manufacturers of consumer products. It also initiated written procedures against another nine companies.
Cooperating in Times of Crisis
21/01/2010 The risk of infringing competition law through cooperating is slight if the cooperation has no effect on supply or prices and the market power of the companies concerned is marginal. Therefore, during the global financial crisis transport companies would be well advised to consider whether they can achieve cost benefits by pooling their capacities without fear of consequences from the competition authorities.
Germany Introduces Second Domestic Merger Control Threshold
26/03/2009 A recent bill amended, among other things, the Act against Restraints of Competition, introducing a second domestic turnover threshold aimed at reducing the number of planned mergers which are subject to notification and control. The new legislation aims to relieve the cartel authorities of the necessity to investigate cases with only marginal domestic relevance and to focus on cases of macro-economic importance.
Mars Fined for Gun Jumping
12/02/2009 The Federal Cartel Office (FCO) has fined US company Mars Inc €4.5 million for closing a deal to acquire US pet food producer Nutro Products without awaiting FCO approval of the transaction. The decision is a signal that the FCO is determined to enforce compliance with the suspension obligation in merger cases by imposing considerable fines.
Greece
Competition Commission Imposes Fines Totalling €78 Million on Milk Cartel
25/09/2008 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.
Competition Commission Fines One Distributor and Acquits Another
17/04/2008 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.
Competition Commission Imposes Heavy Fine on Motor Vehicle Distributor
07/06/2007 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.
Hungary
Highest-ever fine for railway construction cartel
08/07/2010 After almost three years the Competition Office has closed its investigation into the railway construction sector, concluding that it has sufficient evidence to prove that five companies participated in a series of bid-rigging arrangements on projects in 2004 and 2005. The regulator has imposed fines totalling Ft7.1 billion (around €25.5 million) - the largest aggregate fine in a single case in its history.
Legal privilege: where does the Competition Office draw the line?
01/04/2010 The introduction of legal privilege into the Competition Act in 2005 was a major achievement, but it soon transpired that the Competition Office set much narrower limits than market players had expected. The Supreme Court has recently rejected the Competition Office's interpretation that legal privilege covers only those documents that are produced after an investigation has been initiated.
Competition Office introduces informant's fee in bid to break hardcore cartels
04/02/2010 An amendment to the Competition Act, which comes into effect soon, provides that an individual who gives the Competition Office essential written evidence of a price-fixing or market-partitioning hardcore cartel will receive an informant's fee. However, it remains to be seen how the regulator will balance anonymity safeguards with procedural transparency and distinguish between genuine evidence and misinformation.
De Minimis Anomalies: Searching for a Regulatory Solution
17/12/2009 Unlike the EU de minimis rule, the Hungarian version applies the same market share threshold and calculation method to vertical and horizontal agreements. It is difficult to calculate an aggregate market share for a supplier and reseller in the absence of a horizontal affected market in which they both operate, and the Competition Office's search for a practical solution has produced problematic results.
Competition Office Blocks Telecommunications Merger
15/10/2009 The Competition Office has refused to clear the planned acquisition by Magyar Telekom Nyrt, the Deutsche Telekom-owned incumbent, of regional competitor Vidanet Zrt. It found that the planned transaction was likely to result in the creation of a dominant position that would hinder the development of effective competition in all horizontally affected markets.
Revised Competition Act Incorporates Updated Leniency Policy
30/07/2009 Until recently, the Competition Office's leniency policy was not represented in legislation. The revised Competition Act incorporates the most important features of the leniency regime and amends the previous policy in light of the European Competition Network's model leniency programme. Explanatory notes offer a guide to the practical implementation and application of the revised rules.
Iceland
Controversy as Competition Council Annuls Merger
22/11/2001 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.
Amended Competition Act Requires Merger Notification
15/02/2001 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.
India
Key Competition Commission investigations and related developments
12/08/2010 The Competition Commission recently issued an interim order under Section 33 of the Competition Act in response to a petition filed by Reliance Big Entertainment, which effectively stays the ban on the screening of the film Raavan in Karnataka by the Karnataka Film Chamber of Commerce. The film chamber had reportedly been taking arbitrary decisions through its restrictive policies on the screening of non-Kannada films.
Competition Commission passes closure orders
05/08/2010 The Competition Commission has closed five 'information' cases filed under the Competition Act 2002 and three cases of pending investigations transferred from the director general of investigation and registration. Notably, these closure orders by the commission at the preliminary stage are appealable and aggrieved parties may approach the Competition Appellate Tribunal.
Overview (May 2010)
27/05/2010 Including: Competition Act 2002; Competition (Amendment) Act 2009; Monopolies and Restrictive Trade Practices Commission dissolved; Part enforcement without merger control; Competition Commission fully constituted; Cases under investigation; Reduced tariffs in telecommunications sector; Sectors lobby for block exemption; Fast disposal of pending Monopolies Act cases; Draft regulations for merger control likely to be notified; Penalties.
Indonesia
Court System Fails to Enforce Regulator's Decisions
03/05/2007 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.
Commission Fines Yamaha for Discriminatory Practices
15/02/2007 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.
Commission Split on Direct Appointment Case
02/11/2006 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.
Commission Investigates Pipeline Tender Process
17/08/2006 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.
Competition Regulator Investigates Tender Rigging
15/06/2006 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.
Competition Commission Initiates Price-Fixing Investigation
20/04/2006 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.
Ireland
Competition Authority Scrutinizes Increased Number of Media Mergers
08/12/2005 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.
Merger Control Focuses on Minority Shareholdings
04/03/2004 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.
Competition Authority Revises Rules on Vertical Restraints
08/01/2004 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.
'Non-notifiable' Mergers Must be Notified, Says Competition Authority
16/10/2003 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.
Vertical Restraints Practices to be Harmonized with EU Rules
11/09/2003 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.
Another US Lawyer Joins Competition Authority Board
28/08/2003 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.
Israel
Raising the stakes: IAA arrests cartel suspects
26/08/2010 While the Israeli Antitrust Authority (IAA) has been empowered to arrest suspects in antitrust investigations for years now, it had never made use of this power until recently. In the past, the IAA detained suspects for questioning, releasing them (sometimes subject to bail) after several hours of intense interrogation. Two recent cartel investigations in the bakeries market and the water counters segment mark a possible change to this policy.
New ruling extends scope of liability of dominant companies
29/04/2010 The Antitrust Court recently issued a ruling upholding an Antitrust Authority decision that Bezeq, Israel's leading telecommunications company, had abused its dominant position by failing to take diligent measures to prevent potential harm to its competitors caused by a strike of its employees.
Supreme Court Issues New Ruling in Telecommunications Case
17/12/2009 The Supreme Court recently issued a ruling upholding an Antitrust Authority decision to block a merger in the telecommunications industry due to potential competition concerns. The new ruling, which reversed the Antitrust Court's previous decision to clear the merger, provides important guidance on the implementation of the 'potential competition doctrine', particularly in the telecommunications markets.
Antitrust Commissioner Applies 'Illegal Per-Se' Approach to Information Exchanges
30/07/2009 The antitrust commissioner recently made a declaratory decision pursuant to Section 43(a)(1) of the Antitrust Law, according to which information exchanges concerning fees that were allegedly held between five major banks in Israel constituted an illegal restrictive arrangement. The decision seems to apply an 'illegal per-se' approach to information exchanges made in oligopolistic markets.
Potential Competition and Merger Control in the Telecommunications Market
30/04/2009 Mergers that meet certain threshold requirements are subject to a mandatory pre-notification process and require approval from the antitrust commissioner. In 2006 the commissioner blocked a transaction planned by Israel's leading telecommunications firm on account of it eliminating a potential source of competition in the market. The Antitrust Court recently overturned this decision.
Should Sensitive Data Collected by the Antitrust Authority be Exposed?
26/02/2009 The antitrust commissioner has the power to request any information that it deems necessary for the proper implementation of the Antitrust Law. A recent decision gives important guidance on the application of the Freedom of Information Act to sensitive business data submitted by firms to the Antitrust Authority through notification forms, responses to data requests or voluntary submissions.
Italy
Regulator opens proceedings against waste management consortia
10/06/2010 The recyclable waste management sector has been under scrutiny from the Competition Authority, which has raised several competition law concerns. However, debate continues as to whether the authority's preferred solution is appropriate. Moreover, it is unclear whether the consortia in the sector - which arguably provide services of general economic interest - are fully subject to competition rules.
Overview (May 2010)
06/05/2010 Including: Legislative developments; Mergers; Cartels and other anti-competitive practices; Commitment cases; Abuse of dominant position; Court decisions.
New class action legislation - a new opportunity for private antitrust enforcement?
25/02/2010 The arrival of class actions is expected to prove a catalyst for private antitrust and consumer law enforcement. However, as well as the burden of proof for consumers and the use of regulatory decisions in follow-on actions, the regime raises difficult issues about the interplay between public and private enforcement. For example, if an undertaking applies for leniency, will its commitments provide ammunition for claimants?
Setting a Benchmark? Regulator's Policy and Proceedings on Interchange Fees
29/10/2009 In the past few years the European Commission and the Italian Competition Authority have both examined the retail banking sector and multilateral interchange fees. Seen in the context of the Italian regulator's previous interventions in the sector, the ongoing proceedings against MasterCard and several other banks could have significant consequences in the European context.
Merger Notifications: What Constitutes a 'Concentration'?
20/08/2009 The Competition Authority has published the new pre-merger notification thresholds. Following a decision by the Council of State, the authority has also published a revised version of its notification form to clarify the meaning of a 'concentration'. The decision establishes that the mere acquisition of a commercial licence does not automatically constitute a 'concentration' under the act.
Supreme Court Rules on Assessing Joint Bids under Antitrust Law
23/07/2009 The Supreme Administrative Court recently addressed the controversial issue of the assessment of joint bidding under antitrust provisions prohibiting anti-competitive agreements. The applicable laws provide no prohibition for undertakings which individually meet the requirements to enter a bidding consortium. Therefore, case law has admitted 'over-dimensioned' bidding consortia.
Japan
Fair Trade Commission Issues Cease and Desist Orders against Marine Hose Cartel
13/03/2008 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.
Study Group Report Prepares the Way for Anti-monopoly Review
11/10/2007 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.
Reappointment of Chairman of Fair Trade Commission
21/06/2007 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
22/02/2007 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.
Court Rulings on Disclosure of Case Records
07/12/2006 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.
Anti-monopoly Act Reform in Progress
21/09/2006 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.
Korea
High Court rejects multiple regression method in follow-on cartel damages litigation
25/03/2010 In a follow-on damages case filed by the government against five domestic petroleum companies that engaged in cartel activities regarding petroleum products for military use, the Seoul High Court has reversed the district court's judgment which accepted the multiple regression method of estimating damages resulting from cartels. Instead, the appellate court adopted the so-called 'yardstick method'.
Notification on Implementation of Leniency Programme Amended
12/11/2009 The Korea Fair Trade Commission recently amended the Notification on the Implementation of the Leniency Programme for Corrective Measures against Confessors. The purpose of this amendment, which is the third amendment since the programme was established on April 1 2005, is to increase incentives for leniency and remedy problems arising from the existing leniency programme.
Latvia
Overview >
Including: Legislation; Case Law.Council increases Riga Freeport Authority fine for failure to meet obligations
12/08/2010 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%.
Competition Council to be Restructured
14/01/2010 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.
Council Imposes Record Fines for Cartel
26/11/2009 The Competition Council has adopted a decision in a case involving cartel activity and prohibited practices among distributors of Samsung televisions. The case is remarkable in that it demonstrates the council's readiness to use market inquiries as the basis for investigations, impose record fines and combat instances of evidence tampering.
Competition Law Amended Again – New Notification Threshold
06/08/2009 Recent amendments to the Competition Law contain an obligation to notify a merger if the combined turnover of the parties involved exceeds Lats25 million, or the combined market share of the parties in the relevant market exceeds 40%, unless the turnover of one of the parties to the merger is less than Lats1.5 million for the previous financial year.
Application of EU Law by Competition Council
11/06/2009 Since Latvia joined the European Union in 2004 the Competition Council has adopted six decisions involving the application of Articles 81 and 82 of the EC Treaty. The council has found violations of the treaty in only two of these decisons - one involving Riga International Airport, and the other the Association of Latvian Architects.
Freeport of Riga Authority Abused Dominant Position
23/04/2009 The Competition Council has ruled that the Freeport of Riga Authority abused its dominant position by denying the company PKL permission to provide towboat serivces within the port. It also ordered the authority to introduce transparent and objective requirements for the provision of towboat services, and ordered the authority to divest from its operations of towboat services within a one-month period.
Lithuania
Overview >
Including: Legislation and Jurisdiction; Notification and Clearance; Substantive Assessment; Remedies and Restraints; Involvement of Other Parties or Authorities; Judicial Review; Recent Enforcement Record.Seimas Enacts Amendments to Competition Law
11/06/2009 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.
Competition Authority Seeks Greater Power over Regulated Markets
28/05/2009 The Competition Authority has found that an energy company abused its dominant position by charging unfair prices. However, it based its findings solely on the fact that the company's prices did not correspond to the relevant regulator's pricing methodology. If the courts uphold this position, it will affect all undertakings in regulated markets, including the telecommunications, gas and electricity sectors.
Recovering Damages for Competition Council Ruling
21/05/2009 Following the judicial review of a Competition Council ruling on dominant position, the company in question brought a claim for compensation. However, the court ruled that the mere recognition that a state authority's decision was legally unsound is insufficient grounds for bringing a damages claim. Rather, such a finding depends on a state authority having committed procedural infringements.
Macedonia
Recent Commission for Protection of Competition developments
01/07/2010 In the first half of 2010 the Commission for Protection of Competition assessed five merger control filings. Of those, four were cleared in summary proceedings and one transaction was classified as an intra-group deal and therefore declared to be non-notifiable. The commission also rendered three opinions on state aid, declaring one government intervention to be permissible.
Malaysia
Parliament passes Competition Bill 2010
20/05/2010 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.
Mexico
Does leniency mean immunity from third-party claims?
25/03/2010 The Federal Competition Law provides that a resolution granting a leniency applicant the maximum reduction in a fine for cartel activities cannot be contested through administrative or judicial procedures. However, the wording of the provision is confusing and some commentators have sought to interpret it as offering immunity from civil claims by third parties for damages and lost profits.
New filing thresholds for concentrations
28/01/2010 The Federal Competition Law provides that filing thresholds for transactions are calculated annually on the basis of the general minimum daily wage in Mexico City. In 2010 the filing thresholds are 4.85% higher, as the general minimum daily wage has been increased.
Economic Groups: Joint Liability or Else?
03/12/2009 The federal courts have offered guidance on when an economic group can be considered a single economic agent. The 'economic group' concept provides that group members are jointly liable for illegal practices. However, the Federal Competition Commission has also sought to use the principle as a basis for requesting information from an entity in Mexico about other entities in its international group.
Leniency for cartel participants under Federal Competition Law
01/10/2009 The Federal Competition Law and its regulations make provision for reductions in fines for cartel participants that come forward with information about such practices. The commission has indicated that it may fine a cartel participant the equivalent of the daily minimum wage - a negligible amount, given that the commission has the authority to impose a fine of up to 1.5 million times this amount.
Proposed Amendments to Federal Law of Economic Competition
21/05/2009 The public and private sectors have expressed their desire to increase competition in the Mexican economy. In order to do so, the powers of the Federal Competition Commission need to be strengthened. Therefore, Senator Santiago Creel has presented a proposal to amend the Federal Law of Economic Competition.
Simplified and Full Merger Notification Filings: Providing the Right Information
05/03/2009 Parties that are required to submit a full pre-merger filing to the Federal Competition Commission should try to provide all the information that the commission requires in their initial submission, as the review period does not begin to run until the commission's file is complete. In practice, this means carrying out a detailed analysis of the information to be submitted.
Netherlands
Competition Authority issues informal advice on the timing of a notification
05/08/2010 The Competition Authority recently issued informal advice confirming that the intended amendment of articles of association to provide sole control to one company over another company with effect from April 1 2013 constituted a concentration which had to be notified before the amendment, and not at the time the control could actually be exercised.
Tree grower cartel: fine reduced due to time-barred single continuous infringement
05/08/2010 Two tree growers recently appealed a Competition Authority fine for their participation in a cartel. The Rotterdam District Court ruled that, having regard to the five-year limitation period and the fact that the authority's decision dated from 2007, turnover achieved before 2002 related to the time-barred part of this single and continuous infringement.
Legislation on increased buyer power protection comes into force
22/07/2010 The European Commission is not alone in its quest for more protection against buyer power. The Dutch Parliament recently adopted a bill to increase the market share threshold of the national de minimis clause to provide small and medium-sized companies with more leeway to join forces against buyer power.
Court of Appeal confirms that bankruptcy is no excuse for avoiding antitrust fines
22/07/2010 The Competition Authority can be quite persistent in its pursuit of payment of antitrust fines. The Court of Appeal recently confirmed that the director of a bankrupt construction company could be held liable for payment of an authority fine. The case arose from the company's non-payment of a fine imposed under a special accelerated procedure.
Budget cuts may force friendship among regulators
15/07/2010 At the announcement of the Competition Authority's 2009 annual report, its chairman, Pieter Kalbfleisch, stated that the government's intended budget cuts may result in more cooperation between fellow regulators. At the same time, however, it could lead to less effective regulation.
A stitch in time saves €2.15 million
15/07/2010 The Competition Authority has imposed a fine of approximately €1.4 million on UK insurer Amlin and €782,000 on the Dutch state for failure to notify Amlin's acquisition of Fortis Corporate Insurance from the state. The authority rejected the state's argument that it could not be caught by the merger control provisions of the Competition Act since it did not qualify as an 'undertaking'.
New Zealand
Cartel enforcement: new amnesty policy and proposals for criminalization
06/05/2010 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?
National Champions Wanted: No Competition Thresholds Required
08/02/2007 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.
Three Big Wins for Commerce Commission
16/11/2006 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.
Commerce Commission Examines Two-Sided Markets
29/06/2006 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.
Government in Search of Higher-Quality Economic Regulation
16/03/2006 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.
Government Imposes Price Control After Monopoly Profits Investigation
03/11/2005 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.
Norway
Construction firms convicted of bid rigging
01/07/2010 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.
Court upholds fine on trade association for encouraging price increases
22/04/2010 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.
Access to harbour facilities
18/02/2010 The European Free Trade Association Surveillance Authority has heard two cases involving exclusionary conduct and exclusive agreements in relation to harbour facilities. The outcome of the second case is pending, but it illustrates that competition law issues still exist with regard to access to harbour facilities, despite previous European Commission decisions on essential facilities regarding access to harbours.
Continued Scrutiny of the Grocery Market
17/12/2009 The Competition Authority recently informed Norwegian grocery chains that it is to extend their obligation to notify it of agreements with 19 dominant suppliers. The existing notification obligation was introduced in 2005 and will now continue until 2015.
Opening-Up of Websites for Private Sellers of Residential Property
15/10/2009 In January 2009 the Competition Authority proposed a regulation allowing access to websites to be granted to anyone wishing to place advertisements on non-discriminatory conditions. The Ministry of Government Administration and Reform has now adopted the regulation.
Competition Authority Adopts Merger Control Best Practice Guidelines
10/09/2009 The Competition Authority has published best practice guidelines on the conduct of merger control proceedings. The purpose of the guidelines is to improve the predictability of proceedings and establish an efficient review process. The guidelines discuss both pre-notification contacts and case handling after receipt of a formal notification.
Pakistan
Facilitation services of the Competition Commission
22/07/2010 The Competition Commission provides advisory services to undertakings through the Acquisitions and Mergers Facilitation Office, which helps parties contemplating merger or acquisition that want to obtain the commission's view on the matter. The Office of Fair Trading, which has been established to act as a watchdog, identifies and provides solutions to potential issues and handles grievances.
Ignorance is no excuse: Competition Commission on fraudulent trademark use
24/06/2010 The Competition Commission has ruled that a company's manufacture, marketing, sale and export of leather jackets that bore other parties' trademarks without authorization were fraudulent acts and constituted deceptive marketing practices under the Competition Ordinance.
Supreme Court to rule on competition law appeals
04/02/2010 Appeals against decisions by the Competition Commission or its appellate bench are heard by the Supreme Court - a rule that has been challenged by numerous business and trade bodies. The federal government has issued a corrigendum order to make the High Court the first court of appeal, only for the commission to contest the order before the Supreme Court.
New Competition Ordinance Awaits Ratification
14/01/2010 Shortly before the Competition Ordinance 2007 was due to expire - while still under review and with a number of issues unresolved - it was replaced by a new ordinance. Although on substantially similar lines, the Competition Ordinance 2009 has a broader scope of application. It must now be ratified by both houses of Parliament.
Competition Ordinance: Merger Control Revised
07/08/2008 The Competition Ordinance 2007 dissolved the Monopoly Control Authority and established the Competition Commission. New concepts and practices were introduced by the ordinance for which there is no precedent in Pakistan and which may directly affect commercial transactions that take place in, or are related to, markets in Pakistan; questions also remain about mergers abroad.
Poland
Competition Authority accepts leniency applications in price-fixing arrangement
08/07/2010 The Competition Authority has fined Tikkurila Polska SA, a supplier of decorative paints, and DIY retail chains Praktiker and Castorama for fixing paint retail prices between 2000 and 2006. Anti-monopoly proceedings were commenced after email correspondence relating to Tikkurila products was brought to light.
Recent Competition Authority Prohibition Decisions
19/11/2009 The Competition Authority will block any concentration that might lead to a significant impediment of competition on the market, in particular by the acquirer gaining or strengthening a dominant market position. While in the past the authority has seemed to focus on the 'dominance' test, recent decisions signal that it will also conduct a thorough and detailed assessment of the competitive post-merger environment.
Competition Authority Assesses PKP Cargo's Business Strategy
10/09/2009 Following antitrust investigations against incumbent railway carrier PKP Cargo, in July 2009 the Competition Authority issued two important decisions: one in which it found no anti-competitive practice, and the other by which it fined PKP Cargo PLN60 million for an alleged illegal practice. Both proceedings were started as a result of complaints lodged by PKP Cargo customers, one of which also competes with it.
Changes to Leniency Regulation
09/04/2009 The new Leniency Regulation, which sets forth procedural rules for the submission of leniency applications, recently entered into force. The adoption of the regulation coincides with the issuance of the first-ever Competition Authority leniency guidelines, which are intended to raise awareness of leniency and inform potential candidates of their duties and rights under the programme.
Competition Authority Adopts Guidelines on Fines
29/01/2009 The Competition Authority has adopted its first official guidelines on setting fines for competition-restricting practices. The basic purpose of the guidelines is to enhance the transparency of fining policies and thus allow companies further insight into the financial penalties that they may face for breach of competition rules.
Discount Store Transaction Prompts Review of Modern Trade Channel
06/11/2008 The Office of Competition and Consumer Protection's conditional clearance of an acquisition in the discount store sector seems to show that the regulator is reluctant to deviate from its view of the modern trade channel (ie, hypermarkets, supermarkets and discount stores) as a single market. It also defined retail sales of fast-moving consumer goods in such outlets as a separate product market.
Portugal
Overview >
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.Competition Authority plots course for fully liberalised postal sector
12/08/2010 Since the end of the 1990s a gradual and controlled liberalisation process has been underway in the national postal market. This transition must be finalised in the coming months. A Competition Authority study indicates forms of conduct that may be interpreted as anti-competitive and identifies measures to foster competition in the sector.
Competition Authority prohibits merger following media regulator's opposition
22/07/2010 In the case of concentrations which occur in markets subject to sector regulation, the Competition Authority must request an opinion from the relevant regulator before making a final decision. The media regulator's opposition to an acquisition of joint control of Grupo Media Capital by Ongoing and Vertix led to the authority's first opposition decision based on a negative binding opinion issued by a sector regulator.
Portugal Telecom wins appeal against Competition Authority fine
15/07/2010 The Lisbon Commercial Court recently ruled in favour of Portugal Telecom in its appeal against a €38 million fine imposed in 2007. The Competition Authority had fined the company for refusing to grant two competing cable operators access to its underground ducts. This decision and the fine in question have now been overturned.
Competition Authority's first decision on negative sole control
06/05/2010 The Competition Authority's decision not to oppose a merger in the coffee sector carries considerable weight, as it is the first merger case in which the authority has considered the concept of 'negative sole control'. Among other things, it establishes that a change from negative to positive sole control does not imply a modification of control for the purpose of merger control proceedings.
Catering cartel: first application of leniency statute and managers' liability rule
21/01/2010 Five companies have been fined €14.7 million for alleged price fixing in the catering sector. The cartel proved a recipe for disaster for managers and board members, who received fines totalling €20,000, with the exception of an individual leniency applicant, who received full immunity. In addition to its precedents on leniency and managerial liability, the case raises questions about possible damages actions.
Regulator Fines Portugal Telecom and ZON for Abuse on Broadband Markets
12/11/2009 The Competition Authority has concluded that between 2002 and 2003 various companies in the Portugal Telecom and ZON groups abused their dominant position in the national broadband access markets. Among other things, the companies allegedly limited development in services and imposed a margin squeeze by artificially and unfairly setting wholesale and retail broadband access prices.
Romania
Overview >
Including: Main Regulations; Competent Authorities; Economic Concentration; Anti-competitive Practices; Penalties.More guidance, less bureaucracy: amendments signal preventive approach
19/08/2010 The recent amendments to the Competition Law extend the list of penalties to which an economic agent exposes itself when it contravenes the law. However, it is hoped that other changes will reduce the bureaucratic burden on market participants and allow for more direct contact with the authority for guidance purposes.
Internal shake-up at Competition Council will sharpen enforcement
15/07/2010 A series of amendments to one of the fundamental working instruments of the Competition Council has recently entered into force. Among other things, the amending regulation provides that the council's two special divisions for industry and energy and for consumer goods and services will continue to be coordinated by their directorates, but will also be overseen by a commission.
Don't Jump the Gun! First Dawn Raids in Merger Control Case
03/12/2009 The Competition Council has opened an investigation into the alleged premature implementation of an economic concentration involving a well-known generic pharmaceuticals company. However, more surprising was its decision to order dawn raids on both parties - the first in Romania in connection with a merger control case and a clear demonstration of the regulator's approach in future.
State of the Nation: Competition Council Report Examines Key Sectors
29/10/2009 The Competition Council and an independent think tank have prepared a report that examines seven key sectors of the economy: banking, food retail, public procurement, energy, pharmaceuticals, professional services and taxi services. It highlights factors that may affect the functioning of the national markets and offers guidance on a number of practices that are encountered or envisaged on such markets.
Constitutional Court Strikes Down Time Limit for Challenges to Council Regulations
01/10/2009 The Constitutional Court has ruled unconstitutional the provisions in Article 28(2) of the Competition Law on the right to challenge regulations issued by the Competition Council before the administrative courts. It held that requiring parties to challenge regulations within 30 days of notification or publication contravenes constitutional provisions on free access to justice and judicial control over administrative acts.
The Wrigley Romania Case: Lessons on Price Fixing and Market Partitioning
14/05/2009 The investigation of Wrigley Romania and 26 of its distributors for alleged fixing of resale prices and market partitioning ultimately reached the Supreme Court. The case provided greater legal certainty on the issues of a supplier's alleged abuse of dominant position and the significance of documentary evidence of a supplier's anti-competitive practice where there is no proof of acceptance by its trading partners.
Russia
Notification of Combined Reorganizations: New Regulations, Familiar Problems
22/11/2007 Regulations awaiting approval from the Ministry of Justice will change the antitrust notification requirements for companies contemplating reorganization, particularly those involved in a simultaneous spin-off and merger. Although the new regulations do not fully cover such processes, recent practice may give an indication of how to proceed.
Civil Responsibility for Violation of Anti-monopoly Law
02/08/2007 An amendment to the Administrative Code revises the calculation of penalties to be imposed on entities in breach of anti-monopoly regulations. However, a commercial entity which suffers the consequences of anti-competitive conduct, such as a purchaser which has been affected by discriminatory pricing, is not guaranteed to recover its losses in a civil claim for damages or unjust enrichment.
Regulator Gets Tough with New Anti-monopoly Penalty Regime
03/05/2007 The Duma has been discussing amendments to the Administrative Code on stricter penalties for violations of the Anti-monopoly Law since mid-2006. However, the procedure for introducing new legislation gathered pace in March 2007 when a final draft of the changes was approved.
Groups of Companies in Anti-monopoly Assessments
01/03/2007 The Law on the Protection of Competition revises the concept of a 'group of entities'. There are no exceptions to the rules on disclosing information on group structures to the Federal Anti-monopoly Service when applying for approval of transactions; in certain circumstances, non-resident companies which conduct business in Russia may be subject to the same requirements as Russian companies.
Serbia
New block exemption regulations introduced
08/07/2010 The government has adopted regulations that provide details of block exemptions (for distribution agreements, research and development, and specialization agreements) and individual exemptions (the bylaw regulating the content of the request for individual exemption), setting the requirements under which an agreement is deemed not to have an appreciable effect on competition.
Singapore
Guidelines on Transitional Arrangements and Appropriate Penalties
13/10/2005 The Competition Commission of Singapore has released new guidelines on transitional arrangements and the appropriate amount of penalty for infringements of Sections 34 and/or 47 of the Competition Act. Parties to agreements made on or before July 31 2005 will have an additional six months, up to June 30 2006, to review these agreements in order to comply with the act.
Public Responds to Competition Committee's Draft Guidelines
04/08/2005 A number of the Competition Act's provisions will come into force in 2006. In anticipation of this, the Competition Commission has consulted on draft guidelines on enforcement, powers of investigation, filing for guidance or decision, and leniency for undertakings volunteering information in cartel cases. The commission is presently evaluating the submissions made by the public.
Competition Commission Issues Draft Guidelines for Public Consultation
19/05/2005 The Competition Commission has consulted on draft guidelines indicating how it will interpret some of the provisions of the Competition Act, which becomes effective on January 1 2006. The draft guidelines clarify that the commission will focus on anti-competitive activities that have an appreciable adverse effect on Singapore markets, except where there is a net economic benefit.
New Competition Act Comes into Force
24/02/2005 The Competition Act provisions establishing the Competition Commission came into force on January 1 2005 as scheduled. The commission's duties include eliminating or limiting practices that have an adverse effect on competition in Singapore, and maintaining and enhancing efficient market conduct and promoting competition in Singapore markets.
Competition Bill is Tabled in Parliament
28/10/2004 The Singapore Ministry of Trade and Industry concluded its second round of public consultation on the draft Competition Bill in August 2004. Amendments to the draft address concerns about the independence of the Competition Commission and fears of disruption in the event that the commission dissolves a merger after it is completed, among other things.
Groundwork Laid for Competition Regime
01/07/2004 Until recently Singapore took a sectoral approach to competition law, but this will soon change if the new draft Competition Bill is passed as expected. The bill will apply to all economic activities by private sector entities, and is to focus on anti-competitive agreements and conduct that will have an appreciable adverse effect on markets in Singapore.
Slovakia
New notice on pre-notification contact
05/08/2010 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.
Latest decisions and fines from the Anti-monopoly Office
15/04/2010 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.
Slovenia
Competition Protection Office to become an independent agency
08/07/2010 The status of the Competition Protection Office has been the subject of recent lively public debate. Since its establishment in 1994 the office has been organized as a department within the Ministry for Economic Affairs. However, a new development may be on the cards as the Ministry for Economic Affairs recently adopted a proposal for an Act on the Establishment of the Slovenian Agency for Protection of Competition and Consumers.
First whistleblower case - a result of the new leniency programme?
15/04/2010 According to public speculation, one of the participants in the alleged cartel between a number of Slovenian construction companies - currently under investigation by the Slovenian Competition Protection Office - applied for immunity from a fine in exchange for certain disclosures which reportedly enabled the office to conduct effectively a series of recent dawn raids at the premises of the companies.
South Africa
Overview >
Inlcuding: Background; Merger Control; Restrictive Practices; Recent Case Law.Competition Tribunal approves merger between Chlor-Alkali and Botswana Ash
22/07/2010 The Competition Tribunal has approved a large merger between Chlor-Alkali Holdings Limited and Botswana Ash Limited. However, the tribunal acknowledged the potential anti-competitive effects of the proposed transaction and ordered that the merged entity, among other things, sell chemical salt to inland South African-based purchasers at a specified maximum price.
Competition Commission grants exemption to New National Hospital Network
15/07/2010 On May 21 2010 the Competition Commission granted the New National Hospital Network a five-year exemption from certain provisions of the Competition Act. This exemption allows private hospitals that are members of the network to set prices in certain circumstances.
Vehicle tracking companies guilty of anti-competitive behaviour
03/06/2010 The Competition Tribunal has found that three vehicle tracking companies – Netstar, Matrix Vehicle Tracking and Tracker Network – and industry association the Vehicle Security Association of SA contravened the Competition Act by setting standards which created barriers to entry into the stolen vehicle recovery market.
Competition Commission reconsiders merger application procedures
03/06/2010 The Competition Commission recently revoked its 2002 service standards and published revised standards for its mergers and acquisitions division. The new service standards set out periods for the commission to review a merger according to the categorization of that merger – non-complex (phase 1), complex (phase 2) or very complex (phase 3).
Commission refers its price-fixing findings against major oil companies
29/04/2010 The Competition Commission has referred its findings of price fixing in the supply of bitumen against several leading oil producers to the Competition Tribunal. It alleges that the producers colluded with each other to fix prices from 2000 until December 2009, through both Southern African Bitumen Association meetings and direct correspondence.
Commission appeals bread cartel penalty
29/04/2010 The Competition Commission has appealed a Competition Tribunal ruling on the administrative penalty imposed on Pioneer Foods for its involvement in a bread cartel. The fine imposed by the tribunal was based on Pioneer's sales of bread, whereas the commission believes that the fine should be based on the Pioneer group's total turnover.
Spain
Competition Commission Clarifies Requirements to Establish Refusal to Supply
14/08/2008 Refusal to supply has been a controversial and ambiguous concept in competition law for many years. In a recent decision to reject a complaint, the National Competition Commission has clarified its view and provided helpful guidance on the application of the concept.
On the Waterfront in Barcelona: Container Transport Cartel is Broken
15/05/2008 The National Competition Commission recently found two associations of transport companies responsible for having cartelized the market for the land transport of containers to and from the port of Barcelona. The authority imposed the maximum fine possible (10% of annual turnover) on each association - a level which is unprecedented in Spain.
Sweden
Sale of AstraZeneca Drugs Portfolio to GlaxoSmithKline Approved
23/04/2009 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.
Competition Authority Rules on EuroBonus Scheme
26/02/2009 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.
Court Dismisses Merger Decision
23/10/2008 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.
Competition Authority Asked to Propose Measures to Enhance Competition
11/09/2008 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 Votes to End State Monopoly on Pharmacies
10/07/2008 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.
Switzerland
Overview >
Including: Unlawful Agreements; Abuse of Dominant Position; Procedure; Sanctions; Swiss Law and EU Law; Merger Control; Merger AppraisalFCC consults on its vertical agreements communication review
10/06/2010 The Swiss Federal Competition Commission (FCC) has undertaken a consultation for the review of its 2007 communication on vertical agreements. This new text confirms the FCC's determination to combat the isolation of Swiss markets and the maintenance of high prices in Switzerland due to competition restrictions.
Competition Commission prohibits merger between Orange and Sunrise
03/06/2010 The Competition Commission has prohibited the proposed concentration between France Telecom SA's and TDC A/S's respective subsidiaries in Switzerland. The commission held that the merger would have led to a situation in which Swisscom and the merged entity were dominant in the Swiss mobile telephone market.
Federal Administrative Court overrules Competition Commission in Swisscom
27/05/2010 The Federal Administrative Court has overruled the Federal Competition Commission's imposition of a Sfr333 million fine on Swisscom Mobile for an alleged abuse of its dominant position in the mobile termination market. The commission has announced its intention to appeal to the Supreme Court on the grounds of its belief that the Cartel Act should apply to regulated sectors.
Competition Commission fines Pfizer, Eli Lilly and Bayer for resale price maintenance
25/02/2010 The Competition Commission has found that resale price-fixing agreements between manufacturers and distributors of three medical drugs were unlawful. It imposed a fine of Sfr5.7 million on the pharmaceutical companies concerned. This is the first commission decision under its notice regarding the assessment of vertical agreements to impose a fine for price recommendations.
Competition Commission Fines Swisscom for Abusive Margin Squeeze
17/12/2009 Swisscom AG was fined Sfr220 million by the Competition Commission for abusive margin squeezing in relation to broadband internet services provided until the end of 2007. Swisscom was found to have charged competitors excessive prices for broadband connectivity services compared with those it charged end users, thus preventing its competitors from trading profitably in the fast internet access business.
Competition Commission Approves Merger of Tamedia and Edipresse
15/10/2009 The Competition Commission has approved the proposed concentration between Tamedia and Edipresse - two of Switzerland's main regional newspaper publishers - following a second-stage assessment. The concentration was cleared without conditions and commitments under the so-called 'failing firm' doctrine.
Turkey
Overview >
Including: Competition Authority; Competition Board; Prohibited Activities; Penalties.Competition Board accepts attorney-client privilege in potential landmark decision
05/08/2010 While the Competition Board has the authority to search the premises of undertakings and request information or documents from them, the law makes no reference to the nature of attorney-client communication. Although attorney-client privileged information and documents are protected in other areas of Turkish law, competition legislation and, until recently, the precedents of the board did not explicitly provide for such protection.
Communiqué regulates right to access to file and protection of commercial secrets
27/05/2010 The Competition Authority has enacted the Communiqué on the Regulation of the Right to Access to File and the Protection of Commercial Secrets. The communiqué determines the procedures and principles for parties that are subject to an investigation or a second-phase investigation to exercise their rights to access to file, and further regulates the protection of information classified as commercial secrets.
Draft communiqué released in bid to enact new merger regulation in 2010
11/03/2010 Despite first hinting at changes to the Communiqué on Mergers and Acquisitions Requiring the Approval of the Competition Board in November 2007, over the last two years the Competition Authority has taken no steps towards realizing its long-awaited intention to restructure the merger control regime. However, in mid-February 2010 it broke its silence and unveiled the draft communiqué.
Spotlight Turned on Automotive, Pharmaceutical, Banking and Media Sectors
17/12/2009 Following amendments to the Law on the Protection of Competition, which brought into effect the Law Amending Various Laws for Harmonization with Fundamental Criminal Laws, the Turkish antitrust regime has introduced a stricter fining regime and established a leniency and immunity programme for companies. In August 2009 the board revealed the first of four major cartel investigations.
Competition Authority Issues New Guidelines on Vertical Agreements
08/10/2009 Since the Law on the Protection of Competition came into force in 1994, there has been concern that the competition law regime lacks secondary legislation. However, over the past two years the Competition Authority has attempted to address this problem by issuing back-to-back regulations and guidelines. Its latest piece of legislation is the extended version of the Guidelines on Vertical Agreements.
Competition Board Fines Leading Flat Steel Producers
09/07/2009 The Competition Board has finalized its investigation into the Turkish flat steel market. As a result of its investigation, the board has fined three leading flat steel producers. The fine was based on the fact that the existing shareholding structures of two of the undertakings enabled them to conduct coordinated market behaviour in the flat steel market.
Ukraine
Overview >
Including: Regulatory Framework; Concentrations; Abuse of a Dominant Position; Concerted Practices; Discrimination by State and Local Government Authorities; Remedies; Unfair CompetitionLaw on Public Procurement extends Anti-monopoly Committee's remit
05/08/2010 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.
Regulator's rethink casts doubt on telecoms merger
24/06/2010 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.
New head of Anti-monopoly Committee sets aggressive enforcement agenda
29/04/2010 Oleksiy Kostusev, the newly appointed head of the Anti-monopoly Committee, intends to introduce criminal liability for individuals involved in unfair collusion, as he believes that this represents the most effective deterrent to anti-competitive activities. Kostusev also plans significant increases in the maximum fines imposed by the committee's regional departments.
Highest Commercial Court highlights key findings in antitrust litigation
25/03/2010 At the end of 2009 the Highest Commercial Court issued an overview of court practice relating to antitrust legislation, indicating the development of Ukrainian competition law practice through the establishment of court precedent. Among other things, it confirms that no commercial court has competence to determine the monopoly status of a market participant, either independently or on the basis of expert opinions.
Anti-monopoly Committee: toothless against foreign companies?
04/02/2010 The Anti-monopoly Committee has announced a successful year in anti-monopoly litigation, including significant decisions on violations in the oil, aircraft services and cable television sectors. However, the committee faces greater problems in imposing resolutions on foreign entities.
Distributors Beware: Anti-monopoly Committee Examines Consumer Products
14/01/2010 Towards the end of 2009 the Anti-monopoly Committee carried out frequent inspections of suspected competition violations involving consumer products. Although it has so far focused on pharmaceuticals and petroleum products, it is unlikely to stop there. Producers, distributors and other market participants must consider how best to conduct business in the regulator's spotlight.
United Kingdom
Court Reverses Tribunal Decision on Whether Damages Action is Time-Barred
02/07/2009 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.
Impact of the 2009 Budget on Competition Law and Regulation
14/05/2009 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.
OFT and Competition Commission Publish Report on Merger Decisions
09/04/2009 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.
OFT and Competition Commission: Reviewing Undertakings and Orders
05/03/2009 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.
Court of Appeal Rules against Competition Appeal Tribunal in Floe Telecom
05/03/2009 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.
Administrative Court Rules in OFT's Favour on Case Closure
05/02/2009 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.
USA
Overview >
Including: Federal Antitrust Agencies; Federal Merger Enforcement; Federal Non-merger Civil Enforcement; State Antitrust Enforcement; Private Antitrust LitigationCalifornia Supreme Court bars pass-on defence for state law antitrust claims
05/08/2010 The California Supreme Court recently held that California law bars antitrust defendants from invoking a pass-on defence in most circumstances, even though both direct and indirect purchasers may sue for treble damages. The decision raises significant questions about the scope of liability under California antitrust laws and presents a risk of duplicative recovery.
Certain financial hedge arrangements can violate Sherman Act
15/07/2010 The Southern District of New York recently approved a proposed final judgment in the Department of Justice's enforcement action against the KeySpan financial hedge arrangement. The department's enforcement action was an aggressive use of Section 1 of the Sherman Act to prohibit an otherwise lawful agreement because it had as its objective a predictably anti-competitive effect.
American Needle: The Supreme Court evaluates antitrust immunity for joint ventures
24/06/2010 Breaking a string of victories for antitrust defendants, the Supreme Court has issued its opinion in American Needle, Inc v National Football League. The decision treats the conduct of joint ventures comprised of independently owned and independently managed businesses that act as "separate economic actors" as the collective action of the venturers, and thus subject to review under Section 1 of the Sherman Act.
FTC approves Google/AdMob transaction
17/06/2010 The Federal Trade Commission has approved Google Inc's proposed acquisition of AdMob Inc following a six-month second request investigation. In addition to a press release announcing the decision, the commissioners took the fairly unusual step of issuing a closing statement to explain the decision - revealing that the commissioners' primary rationale for clearing the deal was the entry of Apple Inc into the relevant market.
New merger guidelines emphasize flexibility
29/04/2010 The Department of Justice Antitrust Division and the Federal Trade Commission have released for public comment a new draft of the Horizontal Merger Guidelines. Their acknowledgement of a more holistic, indeed subjective, approach will not surprise experienced counsel, but the judicial response is more difficult to predict in light of increasing insistence on rigorous economic proof.
NFL ruling could apply beyond sports
18/03/2010 The Supreme Court has heard oral argument in American Needle Inc v National Football League, a case likely to have a profound effect on the application of Section 1 of the Sherman Act to commercial joint ventures. The key question is whether the National Football League's 32 separately owned and operated member clubs are independent economic enterprises and thus capable of conspiring among themselves.
Venezuela
Acquisition of Digitel by Telvenco Approved
13/07/2006 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.
Draft Anti-monopoly Law Will Soon be Approved
27/04/2006 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.
Superintendency Rejects Allegations of Unfair Competition for Ad Campaign
02/02/2006 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.
Superintendency Rules on Television Cartel Practices
01/09/2005 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.
Superintendency Launches New Investigations
18/08/2005 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.
Regulatory Update
07/07/2005 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.
