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December 2009

Office of Fair Trading fines over 100 construction companies for bid-rigging, and construction recruitment agencies for price-fixing and collective boycott
In its largest cartel investigation to date, the OFT has fined 103 construction companies for engaging in "cover pricing", a form of bid-rigging. Separately, the OFT has fined six recruitment agencies for fixing fee rates and withdrawing from or refraining from entering into contracts with an intermediary company for the supply of candidates to construction companies in the UK.

English High Court damages claim in Cooper gives guidance on staying of actions pending parallel proceedings, and liability of subsidiaries
This recent judgment establishes that a company can be sued in follow-on damages from a competition law infringement finding, even where the finding was made against its parent company. It also indicates limits on the ability of a cartelist to frustrate damages actions by starting proceedings in another jurisdiction.

European Commission gives green light to the European Electronic Toll Service (EETS)
The European Commission has adopted a decision setting out the technical, procedural and legal specifications for EETS, after almost five years of intense discussions. EETS will enable private and commercial road users to pay tolls throughout the European Union using a single interoperable device and one service contract.

Parental responsibility: ECJ judgment in Akzo Nobel confirms that parent companies are liable for cartel behaviour of subsidiaries
The European Court of Justice has confirmed that parent companies are presumed to be liable for cartel infringements committed by a 100% owned subsidiary. The presumption is rebuttable, but parent companies are very unlikely to escape cartel fines by claiming their subsidiaries operate independently.

European Commission publishes Intel abuse decision, Intel settles with AMD
In May 2009 the European Commission fined Intel over €1billion for abuse of a dominant position on the x86 CPU market, through its pricing practices of: (i) 'conditional rebates'; and (ii) 'naked restrictions'. Intel has also (partially) settled the complaints of its competitor, AMD, for $1.25 billion.

ECJ ruling in GlaxoSmithKline, on parallel imports of pharmaceuticals in Spain
The European Court of Justice has upheld a finding of infringement of Article 101(1) (formerly Article 81) by GSK's dual pricing agreement in Spain, intended to restrict parallel trade of its pharmaceuticals. The ECJ also confirmed that an agreement must have appreciable objective advantages for exemption under Article 81(3) - an assessment of such advantages should have taken into account the nature and specific features of the pharmaceutical sector. However, the ECJ found that the lower court erred in requiring proof of harm suffered by final consumers as a prerequisite for a finding of anti-competitive object.

Entry into force of the Treaty of Lisbon on 1 December 2009 – impact on EU Competition rules
Following the ratification of the Lisbon Treaty by the Czech Republic on 3 November 2009, it has now been ratified by all EU Member States and entered into force on 1 December 2009.

October 2009

HSBC Holdings plc and Vidacos Nominees Limited v The Commissioners of HM Revenue & Customs (Case C-569/07)
The European Court of Justice (ECJ) has held that the UK's Stamp Duty Reserve Tax ("SDRT") is unlawful as a matter of EC law. Under s.96, Finance Act 1986, the entry of shares into a clearance system gives rise to a charge to SDRT of 1.5%. On 1 October 2009, the ECJ held that this breaches Article 11 of the Capital Duty Directive. Businesses who have paid the 1.5% charge should take advice on whether they have a potential claim at the earliest opportunity.

Fourth International Competition Conference - Brussels, Friday 27 November 2009
The Brussels Bar, Dutch Speaking Section is proud to announce the fourth edition of its International Competition Conference.

September 2009

Olswang Competition Update - September 2009
As summer draws to an end and the regulators and courts start to go back to business, we are pleased to bring you the second issue of our Competition Update.

The CAT upholds Tesco's challenge to the Competition Commission's groceries market investigation
The CAT has upheld an application for appeal brought by Tesco challenging part of the Competition Commission's final report into the supply of groceries in the UK, specifically the CC's recommendation for a "competition test" to be implemented within the planning system, aimed at preventing the market dominance of large retailers. The CAT quashed the CC's decision to recommend the competition test and directed the CC to retake it.

Competition Appeal Tribunal makes a rare costs award against Ofcom
Following the CAT's finding against Ofcom in last year's appeal against its termination rates dispute determination, the CAT has now also made a costs award against that regulator. It is very rare for the CAT to make such an award, and sheds important light on the circumstances in which it will do so, particularly the relevant standard of the regulator's decision-making.

UK High Court strikes out part of cartel damages claim against British Airways
On 8 April 2009 the High Court gave judgment in a damages claim against British Airways for the airline's alleged involvement in an air freight cartel. The case is significant as it deals with the scope of "representative" damages claims on behalf of a class of claimants in alleged cartel cases.

ECJ rules that a concerted practice arising from a single meeting between competitors can have an anti-competitive object
The ECJ has ruled that an exchange of information between competitors has an anti-competitive object if it is capable of removing uncertainty concerning the competitors' intended conduct. A causal connection between the exchange and the competitors' market conduct is presumed, and competitors are presumed to take account of the information exchanged, even if it took place on a single occasion.

European Commission fines Electrabel €20 million for acquiring control of CNR without prior Commission approval
The Commission has imposed the largest ever fine for failure to notify a concentration with a Community dimension, even though the concentration itself raised no competition issues. The Commission held that Electrabel acquired de facto control of CNR some years before the full acquisition which it notified to the Commission, despite a non-majority shareholding.

ECJ upholds the €10.35 million fine on France Telecom/Wanadoo for predatory pricing
The ECJ dismissed France Télécom's appeal against a CFI judgment upholding the Commission's decision to fine its subsidiary Wanadoo for predatory pricing on the French internet access market. The ECJ confirmed two important legal points: (1) that the Commission did not have to prove the possibility of Wanadoo recouping its losses; and (2) that a dominant firm does not have an absolute right to "meet competition" by aligning its prices to those of its competitors.