In March 2021 the Federal Administrative Court judicially reviewed a search warrant and confiscation order in the context of a dawn raid carried out by the Competition Commission. According to the court, this was the first such appeal ever. This was likely mainly due to the fact that the chances of success of such an appeal have always been considered low, which is confirmed by this decision.
The Federal Cartel Office recently published its Standards of Effective Compliance. These are highly relevant right now because sufficient compliance measures have been legally recognised as a factor which can lead to reduced fines since the amendment of the Act Against Restraints of Competition earlier in 2021. The standards are therefore also valuable for the question of which measures are necessary to exonerate company management.
In 2014 the Croatian Competition Agency (CCA) rendered an infringement decision in which it found that by adopting and publishing the "Minimum Price List of Orthodontic Services" from October 2010 until October 2013, the Croatian Orthodontic Society had concluded a 'prohibited agreement' within the meaning of the Competition Act. The High Administrative Court surprisingly overturned the decision. Now, the Supreme Court has found the CCA's decision to be correct.
The Competition Board has published its reasoned decision regarding its investigation into whether six fertiliser suppliers violated Law 4054 on the Protection of Competition, which prohibits, among other things, anti-competitive agreements and concerted practices. The decision comprises important Competition Board assessments and findings as to how insufficient documentary evidence can be supported by economic evidence to prove the existence of an anti-competitive agreement.
The Competition Appeals Tribunal recently upheld the Competition Council's finding that FK Distribution used its power on the market for the distribution of unaddressed mail (print circulars) to gain a competitive advantage, which was not based on its own merits, on the market for the distribution of digital circulars. The decision shows the importance of market definition in abuse of dominance cases and provides guidance on approaching the market definition process in tying cases that involve digital platforms.
Prior to stepping down as California's attorney general to assume his new role as secretary of health and human services, Xavier Becerra consolidated all aspects of healthcare enforcement under a new Healthcare Rights and Access Section. Antitrust enforcement in healthcare will now be under the auspices of this new section. The antitrust staff attorneys assigned to this section will inevitably bring healthcare into even sharper focus.
The Federal Trade Commission (FTC) recently filed an administrative complaint challenging the acquisition of Grail, an emerging producer of early detection tests for multiple cancer types, by Illumina, a producer of next-generation DNA sequencing platforms which are used by Grail's (and potentially others') tests. This represents the FTC's first litigated challenge to a vertical transaction since 1978 and is the first major federal challenge to block such a transaction since 2017.
The Office of Competition and Consumer Protection (UOKiK) recently announced the launch of two anti-monopoly proceedings against Polsat Television and four Discovery Group entities. According to the UOKiK, these companies may have abused their dominant position on the TV channel distribution market to the detriment of cable TV operators and ultimately consumers by way of bundled sales of TV channels.
In a formal recommendation, the Competition Commission has opined that Swiss public tender law applies to an electricity supply where a public contracting entity purchases electricity for its own internal consumption (eg, the supply of administrative buildings or public transport) and a distribution grid operator purchases electricity for further delivery to end customers. It is fair to say that competitive pressure among electricity suppliers will intensify in Switzerland.
The new act of 29 March 2021 explicitly and generally exempts operations which create loco-regional hospital networks from the obligation to notify the Belgian Competition Authority (BCA). This new amendment might come as a surprise. It contradicts the BCA's July 2020 note, which reiterated that competition law rules concerning merger control fully apply to the creation of local hospital networks as required under the act of 28 February 2019.
This article summarises how most-favoured customer (MFC) clauses became a major competition law issue in Turkey, especially for large online platforms, and how the relevant case law has developed. It aims to provide a guide for classifying a range of MFC-like clauses and evaluating the competition law-related risks.
More than four decades after the Federal Trade Commission began filing consumer protection actions in federal court for retroactive monetary relief without first completing an administrative proceeding, and more than two decades after it began using this same approach in antitrust cases, the Supreme Court has finally weighed in on the practice, unanimously declaring that it has never been authorised by law.
In 2020 the Office of Competition and Consumer Protection (UOKiK) fined a liquefied petroleum gas distributor Zl730,000 (€160,000) for failing to notify a takeover. At the same time, the UOKiK imposed a Zl120,000 (€26,800) penalty on an industrial gas supplier for lack of cooperation following an information request in the context of merger market research.
The District of Columbia District Court recently issued the first judicial interpretation of 49 US Code Section 10706(a)(3)(B)(ii), which sets out an evidentiary exemption relating to certain agreements among railroads. On its face, the decision's reach appears limited. However, the opinion provides insight into the judicial interpretation of antitrust exemptions and practical reminders for rail and other industries that have legitimate, and sometimes legally protected, communications with competitors.
In 2020 the Office of Competition and Consumer Protection (UOKiK) closed an inquiry into a marketing association with commitments. The association obliged branding agencies to resign from tenders in which no remuneration was due for a creative process (eg, the presentation of a poster or packaging design) – the so-called 'rejection fee'. The UOKiK stated that this deprived members of their independence in making decisions and limited their freedom.
It may be tempting to draw conclusions from the Federal Trade Commission's (FTC's) recent decision to abandon its antitrust case against Qualcomm, but companies should not construe this as an indication that the FTC will cease pursuing similar cases. Companies considering adopting licensing practices similar to those used by Qualcomm, and particularly companies that arguably have market power in the same or a related market, should carefully consider the risks of becoming an enforcement target.
The Eastern High Court has found that Denmark's largest gas company, two subcontractors and an industry association illegally coordinated prices for the service of natural gas-fired boilers. In line with previous decisions, the court found that the parties' agreement constituted illegal price fixing. The court used this as an opportunity to clarify how the notion of 'by object' infringement is to be interpreted in light of recent European Court of Justice judgments.
After the Office of Competition and Consumer Protection (UOKiK) fined Gazprom Zl213 million (€48 million) for withholding information in a probe concerning a joint venture to build and operate the Nord Stream 2 gas pipeline, the Russian gas company announced that it had appealed the fine. Several companies tried to get approval from the UOKiK to set up a joint venture to build and operate Nord Stream 2, but the agency expressed concerns that the concentration could restrict competition.
The Federal Cartel Office (FCO) recently initiated proceedings against a household appliance company based on complaints raised by market participants over certain clauses of the company's new distribution model. The FCO examined whether the terms and conditions of sale discriminated against online retailers. Following the FCO's intervention, the company agreed to delete or adapt certain clauses. Consequently, the FCO terminated its proceedings against the company.
In 2020 the Office of Competition and Consumer Protection (UOKiK) fined Gazprom and five other firms engaged in the construction of the Nord Stream 2 gas pipeline a record €6.5 billion for concluding agreements without the authority's consent. The UOKiK held that the completion of the project would be a breach of competition rules, resulting in an increased dependence of gas recipients on Gazprom in the internal market. Gazprom has appealed the fine.