Competition Law: INFORMATION; UPDATES AND ANALYSIS Covering December, January, February and March 2013-2014

European Union

European Commission fines banks € 1.71 billion for participating in cartels in the interest rate derivatives industry

December 4, 2013

The Commission has fined eight international financial institutions a total of € 1 712 468 000 for participating in illegal cartels in markets for financial derivatives covering the EEA. Four of these institutions participated in a cartel relating to interest rate derivatives denominated in the euro currency. Six of them participated in one or more bilateral cartels relating to interest rate derivatives denominated in Japanese yen.

European Commission fines Johnson & Johnson and Novartis € 16 million for delaying market entry of generic pain-killer fentanyl

December 10, 2013

The Commission has imposed fines of € 10 798 000 on the US pharmaceutical company Johnson & Johnson  and € 5 493 000 on Novartis of Switzerland. In July 2005, their respective Dutch subsidiaries concluded an anticompetitive agreement to delay the market entry of a cheaper generic version of the pain-killer fentanyl in the Netherlands, in breach of EU antitrust rules. Fentanyl is a pain-killer 100 times more potent than morphine and is used for patients suffering from cancer.

European Commission rejects a complaint by Ryanair against Dublin Airport Authority and Aer Lingus concerning alleged violations of competition rules

January 20, 2014

The European Commission has rejected a complaint by Ryanair Limited against the Dublin Airport Authority and Aer Lingus Group regarding alleged breach of Articles 101 and 102 of the Treaty on the Functioning of the European Union in connection with airport services at Dublin airport. The Commission pointed out that the Irish competition authority and the Irish courts would be well-placed to deal with Ryanair’s claims since the alleged conduct and abuses have taken place in Ireland and involves Irish undertakings and their effects are essentially confined to Dublin airport.

Three appeals in calcium carbide cartel

January 23, 2014

The General Court ruled on appeals by SKW, Evonik Degussa and Gigaset (formerly Arques) against a Commission decision of July 2009 fining several companies for operating a cartel in the sector for calcium carbide and magnesium based reagents. The GC entirely dismissed SKW’s appeal. The GC also confirmed the Commission’s main findings regarding the two other appeals, but reduced the fines for Evonik Degussa and Gigaset.

European Commission fines producers of foam for mattresses, sofas and car seats € 114 million in cartel settlement

January 29, 2014

The European Commission has found that the four major producers of flexible polyurethane foam i.e.  Vita, Carpenter, Recticel and Eurofoam participated in a cartel and has imposed fines totaling € 114 077 000. The companies colluded to coordinate the sales prices of various types of foam for nearly five years, from October 2005 until July 2010.

Three appeals in heat stabilisers cartel

February 6, 2014

The General Court ruled on appeals by Arkema, AC Treuhand and Elf Aquitaine against a Commission decision of November 2009 fining several companies for operating a cartel in the markets for heat stabilisers. The GC entirely dismissed all appeals and upheld the Commission’s findings.

European Commission fines two power exchanges € 5.9 million in cartel settlement

March 5, 2014

The European Commission has imposed fines totaling € 5 979 000 on the two leading European spot power exchanges, EPEX Spot (‘EPEX’) and Nord Pool Spot (‘NPS’) for having agreed not to compete with one another for their spot electricity trading services in the European Economic Area . NPS and EPEX received a fine reduction of 10% each for agreeing to settle the case with the Commission.

European Commission fines producers of car and truck bearings € 953 million in cartel settlement

March 19, 2014

The European Commission has found that two European companies (SKF and Schaeffler) and four Japanese companies (JTEKT, NSK, NFC and NTN with its French subsidiary NTN-SNR) operated a cartel in the market for automotive bearings. The Commission has imposed fines totaling € 953 306 000.

https://europa.eu/rapid/press-release_IP-14-88_en.htm

https://ec.europa.eu/competition/publications/weekly_news_summary/2014_02_07.html

https://europa.eu/rapid/press-release_IP-14-215_en.htm

https://europa.eu/rapid/press-release_IP-14-280_en.htm?locale=en                                   

https://europa.eu/rapid/press-release_IP-13-1208_en.htm

https://europa.eu/rapid/press-release_IP-13-1233_en.htm?locale=en

https://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=1_39886

https://ec.europa.eu/competition/publications/weekly_news_summary/2014_01_24.html



Republic of India (comprising pronouncements on anti-competitive agreements, abuse of dominant position)

Mr. Ramakant Kini  v Dr. L.H. Hiranandani Hospital, Powai  

February 5, 2014

Competition Commission of India fines Dr LH Hiranandani Hospital(‘Hospital’) for entering into an anti competitive agreement. The information was filed by Mr. Ramakant Kini against Hospital alleging violation of section 3(4) and 4(2)(a)(i) and 4(2)(c) of the Competition Act, 2002 .Mrs. Jain who was expecting a baby, informed the hospital that she has entered into an agreement with M/s Life Cell India Pvt. Ltd. for preservation of the stem cells of the baby and requested the Hospital to allow Life Cell to collect the stem cells blood right after the delivery.  Mrs. Jain’s request was refused by the Hospital stating that they had an exclusive agreement with the Cryobank for stem cells of expecting mothers. The Commission observed that such kind of agreements would result in a hindrance to the growth of the market and creates entry barriers for the prospective competitors . Therefore, the Commission declared the impugned agreement between the Hospital and Cryobank to be null and void. Hospital was also directed to desist from entering into a similar agreement in the future. Penalty at the rate of 4% of the average turnover of last 3 years was imposed on Hospital .

Re: Alleged cartelization in the matter of supply of spares to Diesel Loco Modernization Works, Indian Railways, Patiala, Punjab against M/s Stone India Limited, M/s Faiveley Transport Rail Technologies India Limited & M/s Escorts Limited

February 5, 2014

Competition Commission of India has imposed a penalty of Rs.62.31 crore on three engineering companies for violation of Competition Act concerning forming a Cartel with respect to a tender for an Indian Railway undertaking. A penalty of Rs. 1.91 crore has been imposed on M/s Stone India Ltd., Rs. 5.70 crore on M/s Faiveley Transport Rail Technologies India Ltd and Rs.54.70 crore on M/s Escorts Ltd. The penalty has been imposed after Competition Commission of India took up a case of suo motto basis based on information given by M/s Diesel Loco Modernisation Works(DLMW), a unit of Indian Railways at Patiala, Punjab. The companies have also been directed to “Cease and Desist” from indulging in such anti-competitive conduct in future

Suo moto Case No. 02 of 2012 In Re: Bengal Chemist and Druggist Association and Ref. Case No. 01 of 2013

March 11, 2014

Competition Commission of India has imposed a penalty of Rs 18.38 crores upon Bengal Chemist and Druggist Association (BCDA) & its those office bearers who are directly responsible for running its affairs and play lead role in decision making for adopting anti-competitive practice of directly or indirectly determining the sale price of drugs and controlling the supply of drugs in a concerted manner in violation of Section 3(3)(a) and 3(3)(b) of the Competition Act, 2002. It was alleged in the complaint that BCDA directed its retailer member not to give discount on the MRP in the sale of medicines to consumers and in order to ensure strict compliance of its directives, BCDA has been carrying out vigilance operations to identify the retailers defying the directions issued by it, and has even forced the defiant members to shut their shops as a punishment measure.

M/s Consim Info Private Limited & Consumer Unity Trust Society (CUTS) v M/s Google Inc., USA & Ors.

March 26, 2014

The Competition Commission of India ordered a fine of INR one crore upon Google Inc., USA and Google India Private Limited. An information under section 19(1)(a) of the Competition Act, 2002 was filed against M/s Google Inc. and M/s Google India Private Limited alleging that Google runs its core business of online search and search advertising in a discriminatory manner, causing harm to advertisers and indirectly to consumers and creating an uneven playing field by favouring its own services and of its vertical partners, by manipulating the search algorithms. It was also alleged that Google provides a number of vertical search services like YouTube, Google News, Google Maps etc. and in order to promote its vertical search services, it mixes many of vertical results into organic search results. The effect of such manipulation of results was that Google‟s vertical search partners will appear predominantly when an internet user searches for some information, irrespective of whether the search results are most popular or relevant.

www.cci.gov.in/May2011/OrderOfCommission/27/022012.pdf

https://www.cci.gov.in/May2011/OrderOfCommission/other/07302012.pdf

www.cci.gov.in/May2011/OrderOfCommission/27/392012.pdf‎

www.cci.gov.in/May2011/OrderOfCommission/27/032012.pdf



United States of America

Department of Justice requires Heraeus Electro-Nite LLC to divest assets acquired from Midwest Instrument Company Inc. to Keystone Sensors LLC

January 2, 2014

The Department of Justice announced that it will require Heraeus Electro-Nite LLC to divest certain assets that it acquired from Midwest Instrument Company Inc. (Minco) to Keystone Sensors LLC in order to resolve the department’s competitive concerns. Heraeus acquired Minco in September 2012.

RBS Securities Japan Limited sentenced for manipulation of Yen Libor

January 6, 2014

RBS Securities Japan Limited, a wholly owned subsidiary of The Royal Bank of Scotland plc (RBS) that engages in investment banking operations with its principal place of business in Tokyo, Japan, was sentenced for its role in manipulating the Japanese Yen London Interbank Offered Rate (LIBOR).RBS Securities Japan pleaded guilty on April 12, 2013, to one count of wire fraud for its role in manipulating Yen LIBOR benchmark interest rates.

Federal Trade Commission (‘FTC’) Approves Pinnacle Entertainment, Inc.’s Application to Divest One of Its Casinos in St. Louis,

Missouri, to Tropicana St. Louis LLC

January 7, 2014

Federal Trade Commission has approved an application by Pinnacle Entertainment, Inc. to divest its Lumiere Place Casino and all associated assets, including two hotels, in St. Louis, Missouri, to Tropicana St. Louis LLC, a wholly owned subsidiary of Tropicana Entertainment, Inc. In a final order, the FTC requires Pinnacle to divest these assets to a Commission-approved buyer to resolve charges that Pinnacle’s acquisition of Ameristar Casinos, Inc. would substantially reduce competition among casinos in St. Louis, in violation of the antitrust laws.

 The Department of Justice Issues Statement on U.S. District Court Ruling That Bazaarvoice’s Acquisition Of Power Reviews Violated Antitrust Laws

January 9, 2014

On January 10, 2013, the department filed a civil antitrust lawsuit in the U.S. District Court for the Northern District of California against Bazaarvoice.  The department alleged that Bazaarvoice’s June 2012 acquisition of PowerReviews eliminated the company’s only significant rival, in violation of the antitrust laws.

TeleCheck to Pay $3.5 Million for Fair Credit Reporting Act Violations

January 16, 2014

TeleCheck Services, Inc., one of the nation’s largest check authorization service companies, along with its associated debt-collection entity, TRS Recovery Services, Inc., have agreed to pay $3.5 million to settle Federal Trade Commission charges that they violated the Fair Credit Reporting Act (FCRA). The penalty matches the second-largest ever obtained by the Federal Trade Commission in an FCRA case.

Department of Justice Antitrust Division closed its investigation of Samsung’s use of its standards-essential patents

February 7, 2014

The Department of Justice’s Antitrust Division issued a statement on February 7, 2014 after announcing the closing of its investigation into Samsung Electronics Co. Ltd.’s use of its portfolio of standards-essential patents that it had committed to license to industry participants on fair, reasonable, and non-discriminatory terms (SEPs) to exclude certain Apple, Inc. products from the U.S. market.

 South American company agrees to plead guilty to price fixing on ocean shipping services for cars and trucks

February 27, 2014

Compañía Sud Americana de Vapores S.A.  has agreed to plead guilty and to pay a $8.9 million criminal fine for its involvement in a conspiracy to fix prices, allocate customers and rig bids of international ocean shipping services for roll-on, roll-off cargo, such as cars and trucks, to and from the United States and elsewhere.

Former owner of Florida airline fuel supply company pleads guilty in scheme to defraud Illinois-based Ryan International Airlines

March 6, 2014

Sean E. Wagner, a former owner and operator of a Florida-based airline fuel supply service company pleaded guilty to participating in a kickback scheme to defraud Illinois-based Ryan International Airlines, a charter airline company located in Rockford, Ill.

U.S. and Canada Antitrust Agencies issue best practices for coordinating merger reviews

March 25, 2014

The Department of Justice, the Federal Trade Commission (FTC), and the Competition Bureau Canada issued a set of “best practices” to make more transparent how they coordinate merger reviews that affect the United States and Canada.

White Paper on Technology-Assisted Review and Other Discovery Initiatives

March 26, 2014

On March 26, 2014 Department of Justice Antitrust Division released White Paper by Tracy Greer, Senior Litigation Counsel E-Discovery. The paper discusses a number of Discovery initiatives and some best practices that have a significant impact on lawyers and their clients who are involved in Division investigations and matters.

https://www.justice.gov/atr/public/press_releases/2014/303547.htm

https://www.justice.gov/atr/public/press_releases/2014/304053.htm

https://www.justice.gov/atr/public/press_releases/2014/304197.htm

https://www.justice.gov/atr/public/press_releases/2014/304652.htm

https://www.justice.gov/atr/public/electronic_discovery/304722.pdf

https://www.justice.gov/atr/public/press_releases/2014/302701.htm

https://www.justice.gov/atr/public/press_releases/2014/302785.htm

https://www.ftc.gov/news-events/press-releases/2014/01/ftc-approves-pinnacle-entertainment-incs-application-divest-one

https://www.justice.gov/atr/public/press_releases/2014/302941.pdf

https://www.ftc.gov/news-events/press-releases/2014/01/telecheck-pay-35-million-fair-credit-reporting-act-violations



Republic of India

Competition Commission of India approves the amalgamation of Mahindra Engineering Services Limited and Tech Mahindra Limited

January 7, 2014

Competition Commission of India approved the Notice under section 6 (2) of the Competition Act, 2002 given by Mahindra Engineering Services Limited (‘MES’)  and  Tech Mahindra Limited (‘TechM’). As stated in the notice, pursuant to the amalgamation Scheme coming into effect, all the undertakings and entire business of MES would be transferred / amalgamated, as a going concern, into TechM. The proposed combination falls under Section 5(c) of the Competition Act.

Mahindra & Mahindra Limited, which directly and indirectly, holds 80.69 per cent of the share capital of MES also holds collectively with other promoters 36.46 per cent of the share capital of TechM, the remaining share capital of which is held by the public.

Competition Commission of India approves the acquisition of GMC Consolidation by GE from Thermo Fisher Scientific Inc.

February 20, 2014

On February 20, 2014 the Competition Commission of India approved the notice given by General Electric Company. The proposed combination relates to the acquisition of the entire share capital of GMC Consolidation LLC by GE from Thermo Fisher Scientific Inc.

Competition Commission of India Approves Lenovo Group Limited’s acquisition of x86 server business of IBM

March 20, 2014

The Competition Commission of India has approved the proposed combination relating to acquisition by Lenovo of the x86 server business of IBM. The proposed combination falls under Section 5(a) of the Act. The proposed combination, inter alia, includes the transfer of assets, contracts and employees associated with IBM’s x86 server business. IBM will not dispose of its enterprise system portfolio. As per the notice, Lenovo is not present in the server market in India and through the proposed combination, Lenovo will enter as a competitor in the already competitive and dynamic server market in India. There is no horizontal overlap between Lenovo and IBM in the market of x86 server business in India.

Competition Commission of India’s  Amendment to Combination Regulations

March 28, 2014

Competition Commission of India has amended the Combination Regulations in continuation of its efforts, to relax filing requirements in respect of transactions not likely to raise competition concerns, provide certainty, reduce compliance requirements and make filings simpler. It has been clarified that the notification requirement under the Competition Act shall be determined with respect to the substance of the transaction and structure of transaction(s) having the effect of avoiding notice shall be disregarded. It has been decided to revise the fee, from INR 10,00,000 to INR 15,00,000 for Form I, and from INR 40,00,000 to INR 50,00,000 for Form II. It has been decided to delete regulation 29 which was perceived to impose an additional condition in respect of preferring appeal in matters relating to combinations and similar to Form I, now the regulations do not require verification on each page of Form II.

https://www.cci.gov.in/May2011/OrderOfCommission/CombinationOrders/C-2013-12-143.pdf

https://www.cci.gov.in/May2011/OrderOfCommission/CombinationOrders/C-2014-01-150.pdf

https://www.cci.gov.in/May2011/OrderOfCommission/CombinationOrders/C-2014-02-155.pdf

https://www.cci.gov.in/images/media/Regulations/Press%20Release.pdf



United Kingdom (UK)

Office of Fair Trading (‘OFT’) consults on proposed commitments relating to platform services for the automotive sector

March 10, 2014

The OFT has opened a public consultation on commitments offered by epyx Limited (Epyx). The commitments seek to address the OFT’s competition concerns regarding Epyx’s conduct in the market for the supply of service, maintenance and repair platforms (SMR platforms) in the UK.

Office of Fair Trading (‘OFT’) refers adherence packaging merger to the Competition Commission

March 14, 2014

The OFT referred the anticipated acquisition by Omnicell, Inc./MTS Medication Technologies, Inc. (MTS) of Surgichem Limited from Bupa Care Homes plc (CFG) to the Competition Commission after it identified concerns about possible increased prices and/or a worsening of services to pharmacies for ‘adherence packaging’ products.

Office of Fair Trading (‘OFT’) refers healthcare product merger to the Competition Commission

March 24, 2014

The OFT has referred to the Competition Commission the completed acquisition by Alliance Medical Limited (Alliance) of the manufacturing assets of IBA Molecular UK Limited used to produce Fluorodeoxyglucose 18F (FDG-18). This comes after the OFT identified competition concerns in the south of England which could lead to an increase in the price of FDG-18 and a decline in the reliability of supplies.

https://www.oft.gov.uk/news-and-updates/press/2014/12-14

https://www.oft.gov.uk/news-and-updates/press/2014/15-14

https://www.oft.gov.uk/news-and-updates/press/2014/20-14



European Union (‘EU’)

Commission clears acquisition of Nokia’s mobile device business by Microsoft

December 4, 2013

The Commission has cleared the proposed acquisition of most of Nokia Corporation’s devices & services business (the “D&S business”) by Microsoft Corporation. The Commission concluded that the transaction would not raise any competition concerns.

Commission confirms inspections relating to potential restrictions on online sales

December 5, 2013

On 3 December 2013, Commission officials initiated unannounced inspections in several Member States at the premises of a number of companies active in the manufacture, distribution and retail of consumer electronics products and small domestic appliances. The Commission has concerns that the companies concerned may have violated EU antitrust rules that prohibit anticompetitive agreements or concerted practices.

European Commission accepts legally binding commitments from Deutsche Bahn concerning pricing of traction current in Germany

December 18, 2013

The European Commission has accepted the commitments offered by the German railway incumbent Deutsche Bahn (DB) regarding its pricing system for traction current in Germany and made them legally binding. The Commission had concerns that DB’s pricing system, in particular discounts that only railway companies belonging to DB could obtain, may have hampered competition in the German markets for rail freight and long-distance passenger transport in breach of EU antitrust rules.

European Commission investigates restrictions affecting cross border provision of pay TV services

January 13, 2014

The European Commission has opened formal antitrust proceedings to examine certain provisions in licensing agreements between several major US film studios (Twentieth Century Fox, Warner Bros., Sony Pictures, NBCUniversal, Paramount Pictures) and the largest European pay-TV broadcasters such as BSkyB of the UK, Canal Plus of France, Sky Italia of Italy, Sky Deutschland of Germany and DTS of Spain.

European Commission continues investigation of Telefónica Deutschland / E-Plus merger without referral to Germany

30 January 2014

The European Commission has rejected a request from Germany to refer the planned acquisition of E-Plus by Telefónica Deutschland (Telefónica) to the German competition authority for assessment under German competition law.

European Commission approves General Electric as purchaser of Thermo Fisher’s divestment businesses

January 31, 2014

The European Commission has approved General Electric as the purchaser of Thermo Fisher’s divestments businesses producing and supplying (i) media and sera for cell culture, (ii) gene silencing products, and (iii) polymer-based magnetic beads. Thermo Fisher had committed to divest these three businesses as a condition for the Commission to allow the acquisition of Life Technologies.

European Commission obtains from Google comparable display of specialised search rivals

February 5, 2014

The European Commission has obtained an improved commitments proposal from Google in the context of the ongoing antitrust investigation on online search and search advertising. In its proposal, Google has now accepted to guarantee that whenever it promotes its own specialised search services on its web page (e.g. for products, hotels, restaurants, etc.), the services of three rivals, selected through an objective method, will also be displayed in a way that is clearly visible to users and comparable to the way in which Google displays its own services.

European Commission clears reacquisition of Acciai Speciali Terni and VDM by ThyssenKrupp, concluding the remedy implementation process following the Outokumpu/Inoxum merger

February 12, 2014

The European Commission has concluded that the reacquisition of Acciai Speciali Terni (AST) and Outokumpu VDM (VDM) by ThyssenKrupp AG (TK) is in line with the EU merger regulation. This decision constitutes the final step in the implementation of the remedies which formed the basis for the Commission’s 2012 conditional clearance of the acquisition by Outokumpu (OTK) of TK’s stainless steel division, Inoxum.

European Commission approves acquisition of Spanish metal food cans producer Mivisa by rival Crown, subject to conditions

March 14, 2014

The European Commission has cleared under the EU Merger Regulation the proposed acquisition of Mivisa Envases, S.A.U. of Spain by Crown Holdings, Inc. of the United States. Both Crown and Mivisa manufacture metal food cans used for fruit and vegetables, fish and seafood, pet food as well as ready-made meals. The clearance is conditional upon (i) the divestment of Crown’s plants producing metal cans in Spain and (ii) the divestment of Mivisa’s metal food cans plant in the Netherlands.

https://ec.europa.eu/competition/publications/weekly_news_summary/2013_12_06.html

https://ec.europa.eu/competition/publications/weekly_news_summary/2013_12_06.html

https://europa.eu/rapid/press-release_IP-13-1289_en.htm

https://europa.eu/rapid/press-release_IP-14-15_en.htm

https://europa.eu/rapid/press-release_IP-14-95_en.htm

https://europa.eu/rapid/press-release_IP-14-97_en.htm

https://europa.eu/rapid/press-release_IP-14-116_en.htm

https://europa.eu/rapid/press-release_IP-14-143_en.htm

https://europa.eu/rapid/press-release_IP-14-270_en.htm



Disclaimer

The information in this private circulation is not legal advice and should not be treated as such. The information is taken from public domain and is purely for private and non- commercial purposes. We do not represent that the information is correct, accurate, complete or non- misleading.

This disclaimer will be governed by and construed in accordance with laws of India, and any disputes relating to this disclaimer will be subject to the exclusive jurisdiction of the courts of the Republic of India.

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