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parliment flags

On 16 December 2014, in a decision likely to delight Swedish retailers, the Swedish Competition Authority (SCA) decided not to further investigate or prosecute alleged price fixing by a protein powder retailer. This instance is significant because on the facts of the complaint: that the price fixing was blatant. In it’s decision, the SCA revealed that it investigated the protein powder producer 13:e Protein Import AB, after an anonymous tip of a 2013 letter sent by the producer. In this –Read More–

As we reported in July 2014, the European Commission fined pharmaceutical company Servier and several of its generic competitors for entering into so called ‘pay for delay agreements’. These agreements were settlements of patent challenges involving payments of tens of millions of Euros to the generic competitors in exchange for their agreement to abstain from competing with Servier’s peripindopril cardio-vascular product. The Commission argued that these agreements violated EU competition law Article 101 and fined each of the generic competitors, –Read More–

On 15 December 2015, the EU Commission announced that it had launched market tests regarding price parity clauses in online hotel booking in France, Sweden and Italy. The EU Commission is market testing the effectiveness of commitments offered by to alleviate concerns that their contractual terms could inadvertently be having an anti-competitive effect. The Commission will co-ordinate and consult with the three national regulators who were carrying out their own domestic investigations to determine whether the commitments offered do –Read More–

On 18 November 2014, Ofcom opened an investigation into the Football Association Premier League’s (the “League’s”) joint selling arrangements for the TV rights to its games. The investigation is important as Ofcom has wide powers including the ability to revolutionise how the League’s rights are sold in the UK. Its decision could alter how much consumers pay to view football and on what channels the games are broadcast. Ofcom are investigating the selling arrangements after a complaint by Virgin Media –Read More–

On 30 October 2014, the UK High Court ruled that the 6 year limitation period for bringing competition claims will be interpreted strictly. The Court struck out claims brought against a credit card company by a number of high street retailers on the basis that those claims related to damage incurred over 6 years ago. The retailers had argued that claims over 6 years should be recoverable due to the nature of the defendant’s offence. They alleged that the defendants –Read More–

We reported in September that following a successful appeal by third party meta-search site Skyscanner, the Competition Appeals Tribunal (CAT) struck down a package of commitments agreed between Expedia, Intercontinental Hotels Group (IHG), and the OFT (now the CMA). The CAT struck down the commitments on the grounds that the package of measures agreed between the parties would have an effect on third parties (such as Skyscanner) who had not signed up to the commitments. The CAT held that –Read More–

The European Commission has issued a Statement of Objections against Honeywell International Inc. (Honeywell) and E.I. du Pont de Nemours and Company (DuPont). The Commission’s allegations centre on certain agreements the parties entered into in 2010 over the production of a new refrigerant for use in car air-conditioning systems (R-1234yf). The Commission believes that the agreements may have limited the product’s availability and technical development cooperation in breach of Article 101(1) of the Treaty on the Functioning of the European –Read More–

In another case on the freedom of German internet distributors, German brass ware manufacturer Dornbracht has been ordered to pay €820,00 to home ware electronic retailer Reuter over the terms of the brass ware manufacturer’s online distribution policy. Dornbracht’s distribution policy (in the form of a rebate scheme) was said by Reuter to be discriminatory to internet sellers by allowing wholesalers an extra discount for goods sold to bricks and mortar sellers. Reuter were successful in its case and the –Read More–

In an important judgment before the Competition Appeal Tribunal, the commitments negotiated between Expedia, IHG and the OFT were struck down for the failure of the OFT to follow due process in considering the effects of the commitments on third party meta-search site, Skyscanner. This ruling will have widespread ramifications for the hotel and travel industry dealing with price parity issues on the one hand and on the other, the CMA (the new UK super competition watchdog) in how it negotiates –Read More–

In a landmark European Court of Justice (ECJ) judgment, the Court overturned a Commission Decision and General Court judgment on the grounds that it had wrongly classified a restriction as a restriction “by object”. The Court held that the Commission had not carried out an appropriate market analysis to prove that the effect of the restriction in question had had an appreciable effect on competition. The EU Commission has over the years adopted an increasingly generous interpretation of what constitutes –Read More–

Two recent German cases have confirmed that manufacturers cannot ban online marketplace sales in non-selective distribution networks. The position is less clear in the context of selective distribution systems but outright bans have been condemned. Recently, the German Federal Cartel Office (“Bundeskartellamt”) confirmed its position regarding the prohibition of distribution through online market places, such as Amazon and Ebay, by making a leading running shoe manufacturer drop its ban on online market places. The manufacturer operates a selective distribution system, –Read More–

On the 29 August 2014, the Competition and Markets Authority (CMA) announced that it had opened two new investigations. After a rather uneventful August, the CMA has opened preliminary investigations into the bathroom fittings and commercial catering sectors. Details are thin on the ground but the CMA has indicated in its announcements that both investigations will focus on breaches of Chapter 1 of the Competition Act 1998, the prohibition against anti-competitive agreements. Both investigations are running on the same timetable –Read More–

On 9 July 2014, the European Commission announced that the French pharmaceutical company Servier, and five other drugmakers (Niche, Matrix, Teva, Krka and Lupin) have been fined a total of €427.7 million by the European Commission. The fines were imposed after a series of deals were concluded aimed at blocking the introduction of cheaper generic drugs (so called ‘pay for delay’ agreements). The Commission found these agreements to be anti-competitive and fined the companies under Article 101 TFEU. Concurrently, the –Read More–

On 25 June 2014, the EU Commission published two policy papers. The first was an update to the De Minimis Notice governing when minor agreements are not caught by the general prohibitions against anti-competitive behaviour. Although an update, the thresholds remain the same so that there is a safe harbour for agreements between companies whose market shares do not exceed 10% or do not exceed 15% when the agreement is between non-competitors. However, this safe harbour does not mean companies –Read More–

On 19 May 2014, the Italian Competition Authority (“ICA”) announced that it had launched an investigation into online travel agencies BV and Expedia Inc regarding their contracts with hotels and whether these contracts had violated competition laws. This investigation follows a formal agreement between the UK competition regulator and the same two companies in January where the companies agreed to commitments regarding discount rates for hotel rooms. If the ICA investigation follows a similar reasoning to the UK investigation, –Read More–

In the one of the first rulings of its kind since real estate agreements became subject to the full scrutiny of UK competition law in 2011, the Central London County Court has held that a use restriction in a lease infringed the Chapter I prohibition of the Competition Act 1998 and did not meet the criteria for exemption under Article 9(1) of the Competition Act. This ruling could have widespread potential implications for commercial landlords and the real estate industry –Read More–

A leading running shoe manufacturer has been given until 10 June 2014 to respond to German Federal Cartel Office (“FCO”) concerns that its ban of online marketplace sales within its selective distribution system may be anti-competitive. The FCO has taken exception with the manufacturer’s apparent complete ban on authorised dealers using online market places such as Amazon and Ebay as well as from supporting price comparison sites. The FCO believe such a ban goes beyond the legitimate remit of a selective distribution in protecting brand –Read More–

On 21st March 2014, the European Commission adopted new safe harbour rules together with an accompanying set of Guidelines which automatically exempt certain categories of technology transfer agreements from the EU competition rules (see Article 101(i) TFEU). The new safe harbour rules known as the Technology Transfer Block Exemption (the “TTBE”) apply to technology transfer agreements between parties with limited market power and which satisfy the other conditions set out in that legislation. The Commission takes the view that, in –Read More–

Most favoured nation (“MFN”) clauses, sometimes known as ‘price parity’ or ‘best price’ clauses, are agreements whereby one party promises another to always offer its best rates or terms for a product or service. They are commonly found in a wide range of commercial agreements from long term industrial supply to distribution arrangements. However,  increasingly they have been adopted in the on-line world through agreements for online travel agency sites, price comparison sites and online marketplaces where the site operators –Read More–

On 25 February 2014, the German Federal Cartel Office (Bundeskartellamt) imposed fines totaling around €17m on four manufacturers of wallpaper, their representatives and the Association of German Wallpaper Manufacturers (VDT) for entering agreements that fixed prices. Between 2005 and 2008, German wallpaper manufacturers had used the VDT association meetings for fixing prices to the detriment of their customers. The Bundeskartellamt acknowledged the important role of trade association in the German economic system, but highlighted that they must not be abused –Read More–