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Competition news in brief from around Europe
This issue of the Competition Law Bulletin contains a comprehensive summary of the important antitrust and competition law developments at EC level and national level in each of our jurisdictions, since January 2008. These include the European Commission's White Paper on damages actions and EC case law developments in abuses of a dominant position, respectively a CFI judgment upholding the finding that Deutsche Telecom had imposed a margin squeeze and an Advocate General opinion supporting parallel trade in the GSK case in the ECJ. At a national level there have been further developments in cartel enforcement, particularly in The Netherlands where there have been further decisions on appeals in the construction cartels and the UK where the OFT is offering rewards to individuals for providing information. The competition authorities have shown their willingness to accept a variety of undertakings to remedy competition concerns in France and Italy. There have also been interesting developments in merger control in Germany and the UK where anti-competitive effects have been outweighed by benefits resulting from the mergers. Sweden has also finalised its proposals for a new competition law.
Bird & Bird is the appointed contributor to the PLC Global Counsel Multi-jurisdictional Competition Law e-mail service for France, Germany, Italy, The Netherlands, Sweden and the UK. The articles in this Competition Law Bulletin on national level competition law developments are based on articles originally written by Bird & Bird which have been published in PLC Global Counsel Multi-jurisdictional Competition Law.
If you have any queries or wish to speak to someone at Bird & Bird about the Bulletin, please do not hesitate to contact Richard Eccles on +44 (0)20 7415 6000 or email BBCLB@twobirds.com. |
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EC Competition Law |
European Commission publishes White Paper on Damages Actions for Breach of the EC antitrust rules
Jeremy Robinson, London
The European Commission has recently published a White Paper on Damages Actions for Breach of the EC antitrust rules (and in particular Article 81 and 82). The White Paper describes the policy choices to be made and measures that are needed in order to ensure that all victims of breaches of EC competition law can effectively get redress in the form of compensation in national courts. These include the establishment of class actions for damages for competition law infringements, on an opt-in basis.
CFI confirms Deutsche Telecom margin squeeze decision
Louise Banér, London
The Court of First Instance has upheld the European Commission's 2003 decision that Deutsche Telecom abused its dominant position by operating abusive pricing in the form a margin squeeze. Deutsche Telecom had charged its competitors prices for wholesale access that were higher than its prices for retail access to the local network. The judgment also examines the relationship between decisions of sectoral regulators and compliance with competition law.
Advocate General's opinion supporting parallel trade in Greek case against GSK
Richard Eccles, London
The long running saga of disputes between Greek exporter wholesalers and GSK following GSK's refusal of supplies for export purposes has taken a new turn. In the European Court of Justice (ECJ) proceedings referred from the Greek court the Advocate General has issued his opinion which favours a conclusion that GSK was abusing a dominant position in refusing supplies to the exporter wholesalers. This opinion goes against the trend of recent European Court and national court judgments, and also the previous opinion in the Syfait case given by Advocate General Francis Jacobs, and therefore comes as a surprise. However, the ECJ is not bound to follow the opinion of the Advocate General when it adopts its full judgment in a few months' time.
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National Competition Law
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The Competition Council accepts commitments proposed by the press distribution market leader
Romain Ferla, Paris
Following complaints in relation to access to information on a system for press distribution, the Competition Council has accepted commitments from the distribution market leader to provide information directly on the system as well as improving access conditions.
The Competition Council condemns doctors' unions for concerted practices in the medical sector
Romain Ferla, Paris
The Competition Council, which had received a complaint from a consumers association, condemned seven doctors' unions for concerted practices between their members in order to raise the price of medical consultations.
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The German Federal Cartel Office prohibits the acquisition of a competitively significant influence on Norddeutsche Affinerie by A-TEC
Christian Schwedler, Frankfurt
The German Federal Cartel Office ("FCO") has prohibited the acquisition of a share of 13.75 per cent in Norddeutsche Affinerie AG, Hamburg ("NA") by A-TEC Industries AG, Vienna ("A-TEC"). The FCO found the acquisition fulfilled the preconditions of a concentration as it granted A-TEC a competitively significant influence on NA under sec. 37 para. 1 no. 4 of the Act Against Restraints of Competition. This extensive application of the "catch-all clause" creates a significant degree of legal uncertainty, as it further extends the scope of application of merger control onto transactions the parties would usually not expect to raise any competition issues.
The German Federal Cartel Office clears the acquisition of seven subsidiaries of Orion Cable by KDG
Christian Schwedler, Frankfurt
On 3 April 2008, the German Federal Cartel Office ("FCO") cleared the acquisition of seven subsidiaries of Orion Cable GmbH, Augsburg by Kabel Deutschland GmbH, Unterföhring ("KDG"), regardless of the fact that it found the acquisition would strengthen the market dominance of KDG. The decision of the FCO is based on the so-called balancing clause, which allows the FCO to clear a planned merger despite a strengthening of a dominant market position in a case where it also has a positive effect on competition, which outweighs the negative effects.
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Italy |
Italian Antitrust Authority accepts undertakings by oil companies
Eutimio Monaco, Rome
The Italian Competition Authority launched an investigation into agreements between nine oil companies in January 2007. The Authority has now accepted undertakings by the oil companies in order to make the market more competitive and easier to access for new entrants.
Italian Competition Authority accepts commitments from Poste Italiane
Eutimio Monaco, Rome
The Italian Competition Authority has decided to accept the commitments made by Poste Italiane with regard to supply agreements it entered into with several delivery agencies. This concludes the Authority's investigation into Poste Italiane's possible abuse of dominant position in the markets of liberalised and soon-to-be liberalised postal services.
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The Netherlands |
NMa revises sanctions decision following CBb ruling
Pauline Kuipers, The Hague
The Netherlands Competition Authority has revised a sanctions decision following the ruling of 31 December 2007 by the Trade and Industry Appeals Tribunal (College van Beroep voor het bedrijfsleven) (CBb). In so doing, the competition authority dropped the fine of almost €10 million previously imposed on mobile telecommunications operator Orange.
NMa completes administrative appeal procedures for various construction subsectors
Pauline Kuipers, The Hague
The Netherlands Competition Authority (NMa) has adopted 21 cartel decisions on administrative appeal relating to the Housing & Utility sector, the Cable and Pipeline sector and Horticultural Services sector. The NMa thus brings the number of completed appeal cases relevant to the construction industry up to a total of 93. The decisions on appeal follow the imposition of NMa fines on more than a thousand construction companies during "fast-lane" and regular sanction procedures. As for now, the NMa is still handling about 20 administrative appeal cases relating to the construction industry.
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Final bill for New Swedish Competition Act
Henrik Nilsson, Stockholm
The bill for a new Swedish Competition Act, has now been presented to the Swedish parliament, the Riksdag. The new Competition Act is proposed to replace the old Competition Act of 1993 from 1 November 2008.
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OFT rewards for information regarding cartel activities
Richard Eccles, London
The Office of Fair Trading ('OFT') has announced a new policy under which it is prepared to pay financial incentives of up to £100,000 in exchange for information which would help the OFT to identify and take action against illegal cartel activities.
Macquarie/National Grid Wireless Merger: Competition Commission publishes final report
Louise Banér, London
On 11 March 2008, the Competition Commission published its final report on the acquisition by Macquarie UK Broadcast Ventures Limited of National Grid Wireless Group finding that the completed acquisition, which combines the only two integrated terrestrial broadcast transmission companies in the UK would lead to a substantial lessening of competition in the provision of broadcast transmission services to television and radio broadcasters and could be expected to result in higher prices and lower service quality. However, in light of the customer benefits that could arise from the acquisition, the Competition Commission has decided to allow the merger, subject to the parties agreeing remedies.
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