FINLAND
November 28, 2013
Asphalt cartel trial concluded in the District Court of Helsinki: the asphalt companies ordered to pay €37.4 million for damages
The State of Finland and 40 municipalities claimed damages in the District Court of Helsinki from the companies that participated in the asphalt cartel during the years 1994-2002 for the excessive price paid for the paving works. The action was based on the Supreme Administrative Court ruling held on 29 September 2009, whereLemminkäinen Oyj, VLT-Trading Oy, Skanska Asfaltti Oy, NCC Roads Oy, SA-Capital Oy, Rudus Asfaltti Oy and Super Asfaltti Oy were fined a total of €82.55 million for having participated in the asphalt cartel.
The State of Finland (The Finnish Transport Agency) claimed damages totalling €56.7 million from the companies that participated in the asphalt cartel. The District Court dismissed the entire action and ordered the State to compensate the companies’ legal costs amounting to €2.6 million. Based on partly new evidence received following the court proceedings in the Supreme Administrative Court, the District Court found that the National Board of Public Roads and the Finnish Road Enterprise had participated in the cartel relating to state paving works at least as of 1998. In addition, the representatives of the National Board of Public Roads were aware of the existence of the cartel since 1994. The District Court deemed that the State had not suffered any damage resulting from activities that had been accepted during the time of action, took part in and benefited from.
The municipalities’ actions were mostly accepted and the asphalt companies were ordered to pay the municipalities the total of €37.4 million (without the interest rate that will be added to the amount) as compensation for damages. According to the decisions of the District Court the municipalities have principally paid an surcharge of 15 or even 20 per percent for the paving works. A so-called price war existed in the Finnish asphalt market from 1996 to 1997, and generally the agreements concluded during these years were not subject to excessive pricing.
Specification of the damages ordered payable:
City of Helsinki 9 274 691
City of Turku 4 974 819
City of Vantaa 3 807 093
City of Tampere 2 974 077
City of Oulu 1 849 228
City of Espoo 1 843 227
City of Jyväskylä 1 506 346
City of Salo 1 346 743
City of Kuopio 877 103
City of Raisio 725 778
City of Pori 681 091
City of Rovaniemi 677 068
City of Kouvola 674 205
City of Mikkeli 604 548
Municipality of Tuusula 588 164
City of Hyvinkää 586 012
City of Kaarina 568 644
City of Imatra 523 956
City of Lappeenranta 416 460
City of Joensuu 353 567
City of Naantali 327 531
City of Kajaani 270 195
City of Forssa 267 200
City of Iisalmi 236 461
City of Kerava 211 068
City of Paimio 182 540
Municipality of Siilinjärvi 176 682
Municipality of Hollola 175 371
(former) Municipality of Kiiminki 130 092
Municipality of Nurmijärvi 100 734
City of Kuhmo 88 483
Municipality of Suomussalmi 87 870
City of Nivala 76 448
City of Äänekoski 70 446
City of Raasepori 65 244
City of Lieksa 57 439
City of Haapajärvi 28 969
City of Kemijärvi 21 974
Municipality of Sodankylä 21 171
City of Kemi Action dismissed
To read the press release of the District Court of Helsinki click here
Source: The District Court of Helsinki
Portugal
November 28, 2013
The Portuguese Competition Authority (AdC) recommended the Government to review the compensation system to the energy incumbent, so as to avoid distortions of competition, and suggested a possible violation of EU State Aid rules
The CMEC (costs of maintenance for contractual equilibrium) are the compensations given to the incumbent Portuguese energy company – EDP – due to the early termination of a long term contract, motivated by the liberalisation of the sector, and are supported by the general fare paid by the consumers on their electric bills.
The AdC has issued a Recommendation pointing out that these compensations shall be reviewed, so that they are determined based on more demanding criteria, in the interest of consumers.
In the exercise of its general supervisory powers, the AdC has found evidence of the underutilisation of the hydro plants that benefit from the CMEC support system, when compared to other hydro plants subject to free market competition. It subsequently concluded that the way of calculating the CMEC allows the beneficiary of that support to have a control over the financial compensation it will receive.
The AdC has also detected a risk of overcompensation (i.e. possible state aid) that should be prevented, as it may distort competition by giving the beneficiary the possibility of extending its economic advantage over its competitors.
Therefore, in order to eliminate the negative effects on competition resulting from the CMEC support system, the AdC has recommended that the Government review this mechanism, with the aim of determining compensations based only on efficient behaviours, both in energy production and in the provision of system services.
This review process should also include an annual evaluation of risk of overcompensation, through an independent audit, which should also identify previously awarded overcompensation.
The proposed reform of the CMEC system would need to be notified to the European Commission, under article 108(3) TFEU.
The press release can be read here
Source: AdC
Switzerland
November 28, 2013
End of investigation into cosmetics sector announced
The Swiss competition commission announced the end of its investigation into restraints in the distribution agreements of cosmetics products. The investigated vertical restraints, which concerned cosmetic products sold primarily via specialised cosmetic shops, were deemed negligible restrictions of competition. In its decision dated 21 October the competition commission concluded that the clauses of the distribution agreements under review (on territorial protection, online-sales, recommendations of prices) did not hinder competition in a significant way. The decision considered namely the minor market share of the company involved, the concentration in the market and the marginal international price differences. In addition the company voluntarily adapted the questioned clauses, declared price recommendations explicitly nonbinding and informed its clients.
More information can be found here.
Source: Swiss Competition Commission (Wettbewerbskommission, WEKO)
Italy
November 26, 2013
The Autorità Garante della Concorrenza e del Mercato (AGCM) launched an investigation against Enervit for possible vertical anticompetitive restraints
During its meeting of last 20 November 2013, the AGCM decided to launch an investigation against Enervit aimed at verifying whether the said undertaking infringes the prohibition of anticompetitive vertical agreement, imposing on its retailers and wholesalers resale price restrictions, absolute exclusive arrangements and permanent non-compete obligations.
The decision was served to the undertaking during inspections conducted in collaboration with the Antitrust Group of the Guardia di Finanza’s (Italian Tax Police) Special Market Protection Unit.
The legal deadline of the investigation has been set at 19 December 2014.
More information can be found here
Source: AGCM
Germany
November 26, 2013
E-Commerce: Amazon abandoned price parity clauses
The Bundeskartellamt has terminated its proceedings against Amazon for enforcing price parity clauses on its Marketplace platform since the company has met the requirements set by the authority. Under the price parity clause sellers are prohibited from selling products they offer on Amazon cheaper through any other sales channel.
In August 2013 Amazon had already announced that it would abandon the price parity clauses for its Marketplace and had already changed its general terms and conditions for some of the sellers.
As there was a risk that Amazon might return to its previous business practice and the contractual conditions had only been changed for some of the sellers, the Bundeskartellamt had objected to the measures. It was also not certain that the sellers were aware that the price parity clauses had been cancelled.
The Bundeskartellamt has called for the legally binding deletion of the price parity clauses from Amazon’s contractual conditions with all the sellers on its Marketplace platform and for Amazon to inform the sellers in no uncertain terms that it has changed its conditions and price parity strategy. Amazon has now fulfilled these requirements.
In these proceedings the Bundeskartellamt cooperated with the British competition authority, the Office of Fair Trading, within the scope of the Network of European Competition authorities, ECN. The authorities have thus ensured the abandonment of the price parity clauses EU-wide.
More information can be found here.
Source: Bundeskartellamt
Private Enforcement
UK
November 25, 2013
The Competition Appeal Tribunal (CAT) has given a reasoned order giving certain case management directions in relation to the claims of the UK claimants against the non-UK defendants following the Court of Appeal’s judgment of 20 November 2013 (Deutsche Bahn AG and others v Morgan and others)
On 20 November 2013 the Court of Appeal (CA) dismissed the 2nd-6th (non-UK) defendants’ applications for permission to appeal the Tribunal’s ruling of 15 August 2013. Indeed the CA has confirmed the lift of the stay of the proceedings, according to article 5.3 of the Regulation 44/2001 the UK has jurisdiction to hear the damage claim since the damage occurred in the UK. The damage regarded the overcharge paid by the claimants as a result of the carbon and graphite carbon products’ cartel entered into by the defendants and sanctioned by the European Commission on 3 December 2003.
The complete order can be found here
Source: CAT
UK
November 20, 2013
The UK Court of Appeal (CA) has refused permission to appeal against a ruling of the Competition Appeal Tribunal (CAT) and recognised that article 5.3 of the Regulation EC 44/2001 (Regulation) can be relied upon for attributing jurisdiction in the UK as the place where the damage occurred even for indirect damages
The applicants to the CA were the non-UK defendants in the “follow-on” claim brought by Deutsche Bahn AG and 29 other claimants for damages in the CAT on the basis of the European Commission decision dated 3 December 2003 whereby the defendants were sanctioned for having infringed article 101 of the TFEU having participated in a cartel regarding the electrical and mechanical carbon and graphite products. The damage claim was however stayed as the only UK domiciled defendant (Morgan) had sought an order that the claim had been brought out of time, it was successful before the CAT, but unsuccessful before the Court of Appeal and Morgan obtained permission to appeal to the Supreme Court, the hearing is listed for 11 and 12 March 2014. The claimants (UK and non-UK) had relied on article 6.1 of the Regulation to establish England has the relevant jurisdiction since Morgan constituted the “anchor defendant”. Subsequently the UK claimants have applied on 13 June 2013 to seek an order lifting the stay in relation to their claims against the non-UK defendants on the basis that the CAT would have jurisdiction under article 5.3 of the Regulation, the latter providing that “ a person domiciled in a Member State may, in another Member State, be sued: … in matters relating to tort, delict or quasi-delict in the courts for the place where the harmful event occurred or may occur”. The CAT on 15 August 2013 made a ruling lifting the stay of the proceedings and permitted the UK claimants to proceed with their damage claim against the non-UK defendants.
These non-UK defendants have sought to appeal to the CA from that CAT ruling arguing that it is only damage suffered by a direct purchaser from a cartelist which is sufficient to found jurisdiction pursuant to article 5.3 of the Regulation. However the CA has refused permission to appeal and thereby clarifying the application of article 5.3 which can be relied upon for “damages, whether characterised as direct or indirect, and by whomsoever first suffered, was damage which occurred in the UK”. Indeed the CA stressed that the Regulation is concerned with connecting the defendant with the putative jurisdiction and not the claimant.
The full judgment and other documents can be found here
Source: CAT
France
November 20, 2013
The Court of appeal of Paris issued a ruling concerning the capacity to produce in a compensation claim an investigation file of the French Competition Authority
On November 20, 2013, the Court of appeal of Paris issued a ruling related to the transmission to ordinary courts of the documents resulting from the investigation phase before the French competition Authority. This ruling relates to an action for damages brought after a commitments decision of the French competition Authority whereby the latter accepted the commitments made by the companies HighCo and SOGEC. Further to this decision, the company Ma Liste De Courses (MLDC) decided to bring an action for damages against HighCo and SOGEC before the Paris commercial court and invited the latter, based on Article 138 of the French code of civil procedure, to ask the French competition Authority to produce the investigation file resulting from the commitments procedure.
According to a ruling of January 19, 2010 of the French Court of cassation, only the defendant can use, before an ordinary court such as commercial courts, the documents resulting from a previous procedure before the French competition Authority. Probably, for this reason, in the present case, the claimant, MLDC, invoked Article 138 of the French code of civil procedure.
On November 20, 2013, the Court of appeal of Paris has allowed the claimant to use the investigation file of the French competition Authority in a damage claim action and therefore operates an important change as to who is entitled to produce the investigation file in compensation claims.
The full text of the ruling (in French) can be found here
Source: Cour d’Appel de Paris
Consumer protection
France
November 19, 2013
The Commission for Economic Affairs of the French National Assembly published its opinion on certain amendments to the draft law relating to the consumer law
In advance of the second reading of the draft law on the consumer law, which will take place at the French National Assembly on 9 and 10 December 2013, the comments made by the Commission of Economic Affairs on the draft law which, as adopted by the French Senate after its first reading of the draft law and in particular the amendments made by the Senate, have been published.
The most significant change concerns Article 45 in that it is proposed that judges will only be able to rule on a follow-up claim for damages once the decision of the French Competition Authority becomes “final”, i.e. after all possible appeals have been exhausted. However, the amendment includes a significant change as an appeal against a decision of the French Competition Authority which would only concern the determination of the fine or other procedural matters will not prevent from considering that the underlying decision of the French Competition Authority is “final”.
More details concerning the preparatory work of the draft law (in French) can be found here
Source: Assemblée nationale
Austria
November 19, 2013
Vertical price fixing in the brewery industry
Austrian Cartel Court fined Austrian brewery Ried e.Gen for vertical price-fixing with retail sector.
The brewery was found to have fixed resale prices and prices of specific marketing campaigns for its brewery products with food retailers. The fine amounted to €52.500 and covered the competition infringements that lasted from 2007 to 2012. The decision of 15 October 2013 of the Austrian Cartel Court was accepted by the parties and is legally binding.
More information can be found here
Source: Austrian Federal Competition Authority (Bundeswettbewerbsbehörde)
Austria
November 19, 2013
Vertical price fixing in the retail sector
Austrian Cartel Court fined the Austrian company EMMI for vertical price fixing in the retail sector.
The company was found to have influenced resale prices of its dairy products with food retailers from 2007 to 2012. The fine amounted to € 210.000. The decision of 7 October 2013 was accepted by the parties and is legally binding.
More information can be found here
Source: Austrian Federal Competition Authority (Bundeswettbewerbsbehörde)
Switzerland
November 18, 2013
Supply Agreements of Swatch
The Swiss Competition Commission has published its decision of 21 October 2013 on the termination of supply agreements by Swatch Group.
More information can be found here
Source: Swiss Competition Commission (Wettbewerbskommission, WEKO)
Austria
November 14, 2013
Cost distribution in settlement proceedings
The Austrian Cartel Appeal Court published its confirmation of October 7, 2013 of the cost-distribution in case of settlement between parties.
Once the complaint against abuse of a dominant position was lodged, the parties reached a settlement-agreement and the complaint was withdrawn. In the decision bringing an end the proceedings, the Austrian Cartel Court ordered that the defendant had to bear all the costs of the court proceedings. The Austrian Cartel Appeal Court confirms this decision. In this particular case the defendant was deemed in its entirety the losing party.
The Cartel Appeal Court confirmed that the costs of the proceedings (which can amount to up to €34.000) are fixed and attributed to the parties at the discretion of the Chairman of the Cartel Court once the proceedings have come to an end in accordance with articles 54 and 52 of the Austrian Cartel Act. When setting the administrative/court costs, the economic-political importance of the proceedings, the administrative expenditure, the economic conditions of the party which is liable to pay and the extent to which this party gave grounds for the proceedings must be considered.
More information can be found here
Source: RIS, Legal Information System of the Republic of Austria, Austrian Federal Chancellery
UK
November 12, 2013
The Court of Appeal (CA) has held that a conspiracy claim can be a valid cause of action to rely on section 47A of the Competition Act 1998 for a remedy of a loss suffered as a result of a breach of competition law but only in rare cases
The CA has allowed the appeal of the IMI Group against the judgment of the High Court ruled on 19 December 2012 which had recognized that the follow-on claim of Newson group could be based on a conspiracy claim.
However the CA has received the argument of Newson Group on the interpretation of section 47A: a conspiracy claim may be brought under section 47A if the European Commission’s infringement findings support it. This may occur only in rare cases. In this case, the infringement findings did not support the intent to injure required for that claim. Accordingly IMI group succeeded on that point, and therefore the appeal has been allowed.
The complete sentence can be found here
Source: Court of Appeal
Italy
November 12, 2013
The Autorità Garante della Concorrenza e del Mercato (AGCM) launched an investigation into possible restrictive agreement in the private health services in Abruzzi Region
During its meeting of last 6 November 2013, the AGCM decided to launch an investigation into four undertakings operating in Abruzzi Region in the private health services sector (Synergo S.r.l., Casa di Cura Privata Villa Serena, Casa di Cura Privata Di Lorenzo S.p.A. and Presidio Ospedaliero Villa Letizia) for possible restrictive agreement.
The investigation follows a report of the undertaking Seagull and has the aim to ascertain whether the above said four undertakings adopted a common strategy in the participation in tendering procedures concerning the Angelini Group’s health care facilities.
The legal deadline of the investigation has been set at 31 December 2014.
More information can be found here
Source: AGCM
Italy
November 11, 2013
The Autorità Garante della Concorrenza e del Mercato (AGCM) launched an investigation into Power-One Italy Spa for possible anticompetitive agreement
During its meeting of last 22 October 2013, the AGCM decided to launch an investigation into Power-One Italy Spa aimed at ascertaining whether it infringes article 101 of TFEU.
According to an anonymous report the undertaking would realize an hard-core restriction consisting in imposing on its retailers resale price restrictions. The claim would be supported by several internal documents of the involved undertaking.
The legal deadline of the investigation has been set at 30 November 2014.
More information can be found here
Source: AGCM
Spain
November 5, 2013
The Spanish Competition Authority (CNC) opened an investigation against Telefonica España based on presumed competition restrictive agreements
The CNC has initiated an investigation process against Telefonica Españaconsidering presumed existence of competition restrictive settlements with Yoigo.
Both companies would have signed agreements for sharing the use or display of mobile phone networks and for Yoigos commercial distribution of a convergent product with its mobile services and with Telefonica’s land line services. Such agreements could constitute a competitive restriction forbidden by article 1 of Spanish Competition Law 15/2007 and by article 101 of European Union Functioning Treaty.
More information can be found here
Source: CNMC
Italy
November 4, 2013
The Autorità Garante della Concorrenza e del Mercato (AGCM) closed the investigation against the Order of Lawyers of Brescia
During its meeting of last 17 October 2013, the AGCM decided to close the investigation launched in 2009 into the Order of Lawyers of Brescia in order to verify whether its decision aimed at punishing several colleagues from Milan who set up the A.L.T. (Assistenza Legale per Tutti, or Legal Aid for All) constituted an anticompetitive agreement in contrast with article 2 of Italian competition Law.
A.L.T. firm, just like a store, has a window and a sign which provide some general information about its legal services. In addition, it advertises the availability of a free first consultation.
On this basis, in 2009, the AGCM decided to launch an investigation. According to the AGCM, the said characteristics would have been the cause of the punishment (censure) imposed on the claimants by the Council of Brescia.
On the contrary, closing its investigation the AGCM has not ascertained any infringement of competition rules. Specifically, in the AGCM’s view, the concerned decisions were limited to the specific case and they did not impact on the competition in the market of legal services.
More information can be found here
Source: AGCM
Follow us on Twitter click here
Join us on Linkedin
Join us on Facebook
To contact the please write at:
info(at)osservatorioantitrust.eu
To subscribe the newsletter click here.
© Osservatorio Permanente sull’Applicazione delle Regole di Concorrenza, Università degli Studi di Trento, 2013.