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Briefings in English - 2007

2007: A year of careful consolidation for EC merger control

This year saw a record number of merger notifications to the European Commission (Commission) and welcome new guidance on several areas of practical importance to merging parties and their advisers. 2007 showed greater use of the rules that aim to provide more flexibility in the system, concerning both allocation of cases between authorities and mechanisms to resolve competition concerns early on in the process. (December 2007)

New restrictions on foreign direct investments in Germany expected

The German government plans to extend the existing restrictions on foreign direct investments. It aims to cover investments by sovereign wealth funds in certain strategic sectors. However, the proposal recently introduced by the Federal Ministry of Economics is drafted very broadly and would allow the Ministry to prohibit or restrict any transaction in any sector involving a non-resident company as a purchaser for reasons of public policy or public security of Germany. (December 2007)

Private actions in competition law

The UK Office of Fair Trading has recommended to the government a number of changes that would change the landscape of competition litigation in the UK to one where private actions can be pursued more easily, and with fewer associated risks, than has previously been the case. The recommendations, which are likely to form the basis of a future government consultation, will be regarded as good news for the emerging competition claimant bar in the UK, but perhaps less favourably by major businesses. These recommendations make a valuable contribution to the ongoing debate in Europe about how best to promote private enforcement. (November 2007)

The European Commission's proposals for settlement proceedings in cartel cases

The European Commission has published a draft notice and regulation containing its proposals for settlements in appropriate cartel cases. Such settlements should result in lower fines being imposed on parties who agree to settle, in exchange for an admission of liability and agreement to waive some procedural rights. (October 2007)

Cartel damages actions

These are the implications of the ruling of the High Court in Devenish and others v Sanofi-Aventis and others, in a judgment handed down today. (19 October 2007)

Company agrees to pay $550,000 civil fine for HSR Act violation

This briefing examines the civil fine of $550,000 that the Iconix Brand Group has agreed to pay to settle charges that it failed to produce certain documents as required under US antitrust laws before completing a $204m transaction. It also outlines the implications of this for other firms required to file under the HSR Act. (October 2007)

Court upholds fine on Microsoft for abuse of market dominance

The European Court today upheld a 2004 European Commission decision fining Microsoft over €497m for abusing its dominant market position in the PC operating systems market. The Court confirmed that Microsoft’s refusal to supply interoperability information to competitors and bundling of Windows Media Player with the Windows operating system were illegal. The judgment is likely to encourage the Commission to continue enforcing EU competition law vigorously. (17 September 2007)

EU court clarifies legal privilege in European competition investigations

The European Court of First Instance (CFI) has confirmed that legal professional privilege (LPP) protects written communications regarding the subject-matter of a Commission investigation exchanged between a client and its external lawyer after the Commission has started that investigation. However, LPP will not be extended to cover communications with in-house lawyers. (September 2007)

China finally enacts Anti-Monopoly Law

The Standing Committee of the National People’s Congress (NPC) formally adopted the Anti-monopoly Law (AML) on 30 August 2007. The AML will come into force on 1 August 2008. This briefing summarises some of its key provisions, highlights some of the major improvements on the June 2007 draft, and discusses the major implications for foreign companies doing business in China. (September 2007)

Chinese anti-monopoly law moves closer to adoption

A revised draft of China’s first comprehensive antitrust law was submitted to the National People’s Congress (NPC) in late June for a second reading amidst intense public and media interest. Under the Chinese legislative process, the draft could be officially enacted into law after three readings. The third reading is to take place during the 24-30 August NPC session. This briefing discusses major developments in the text of the revised draft, together with the ‘legislative intent’ as reflected in related media reports and the implications for foreign investors doing business in China. (August 2007)

The European Commission’s business insurance sector inquiry

The final report of the European Commission’s business insurance sector inquiry, published on 25 September 2007, suggests it has continuing concerns about certain practices in the reinsurance and co-insurance markets and over the role of intermediaries. The Commission also makes it clear that it is as yet unpersuaded of the need for the renewal of the insurance block exemption when it expires in 2010. (September 2007)

European Commission to pay partial damages for flawed merger prohibition procedure

THE European Court of First Instance (CFI) has decided that Schneider Electric SA should be partially compensated for the losses it suffered following the European Commission’s unlawful prohibition of its merger with Legrand SA in 2001. (July 2007)

Exon-Florio amendments enacted

President Bush signed legislation amending the Exon-Florio Act that provides for national security review of foreign investments in the US. The legislation is likely to lead to an increase in the number of transactions notified and investigated under the Act as well as increased Congressional involvement in the review process. (July 2007)

US Supreme Court overturns ruling on RPM agreements

This briefing examines the recent US Supreme Court ruling in Leegin Creative Leather Products, Inc. v PSKS, Inc., in which the Court overturned its nearly 100 year old ruling on resale price maintenance agreements in the Dr. Miles case. (July 2007)

US Supreme Court ruling on antitrust claims

This briefing examines the recent decision of the US Supreme Court in Credit Suisse Securities v Billing, which considered whether securities law precludes application of antitrust law to IPO-related conduct. (June 2007)

Supreme Court clarifies standard for pleading antitrust conspiracy claims

This briefing examines the recent US Supreme Court ruling in Bell Atlantic Corp. v. Twombly, which considered the minimum standards for pleading an antitrust conspiracy under Section 1 of the Sherman Act and clarified that a Section 1 complaint must recite more than mere ‘parallel conduct’ by the defendants to survive dismissal. (May 2007)

Finding a way through the co-decision maze

The aim of this guide is to explain how the co-decision procedure provided for under Article 251 of the EC Treaty works. It sets out what happens at each stage as a Proposal for legislation makes its way through the European Commission, European Parliament and Council. This guide goes beyond simply explaining the wording of the treaty by also setting out the EU institutions’ rules of procedure and providing some examples of how the system works in practice. It is widely acknowledged that this process is complex and difficult to understand. We hope this leaflet will help you make sense of it all. (April 2007)

European Court of Justice upholds fine on British Airways for abuse of market dominance

EU competition law imposes limits on the commercial strategies that companies with a high degree of market power may employ. The EU’s highest court on 15 March 2007 gave judgment in a case dealing with the legality of rebate or bonus schemes operated by such companies. (March 2007)

PRC unfair competition law

The supreme people’s court’s interpretation on issues regarding the application of the law in civil trials of unfair competition cases became effective as of 1 February 2007. It provides guidance on how to conduct trials of civil cases involving unfair competition, protect the legal interests and rights of business operators and maintain orderly market competition, and focuses on three main areas: counterfeiting, misleading or false publicity and trade secret infringement. (March 2007)

European Commission final report on the retail banking sector

The European Commission published its final report on competition issues in the retail banking sector on 31 January 2007, concluding its long running inquiry in this sector. The Commission believes it has identified major barriers to competition and has also signalled that enforcement action may be required to address these concerns. (February 2007)

Cartels and extradition: Norris case

US antitrust enforcers moved a step closer last week to securing the extradition of Mr Ian Norris, a British citizen. His appeals were dismissed against an English High Court ruling extraditing him to the US to face charges of conspiracy to fix prices, obstructing the course of justice, and interference with witnesses. This briefing looks at the implications of the decision for cartel enforcement. (January 2007)

The European Commission’s business insurance sector inquiry

The European Commission intends to investigate further areas such as long-term insurance contracts, ‘best terms and conditions’ clauses in reinsurance, and various aspects of intermediaries’ remuneration. It will also review the operation of the block exemption. (January 2007)

Briefings in Chinese - 2007

China finally enacts Anti-monopoly Law

全国人民代表大会常务委员会于2007年8月30日正 式通过了《中华人民共和国反垄断法》（“反垄断 法”）。该法将于2008年8月1日生效。本简报扼要 介绍了其主要规定，着重说明了其对2007年6月草案 作出的主要改进，并讨论了该法对在中国经营业务 的外国公司的主要影响。

Briefings in Italian - 2007

Introdotto in Italia il divieto di pratiche commerciali scorrette

Con due decreti legislativi (nn. 145 e 146 del 2 agosto 2007), in vigore dal 21 settembre 2007, il Governo ha dato attuazione alla delega contenuta nella Legge comunitaria 2005, recependo le Direttive 2006/114/CE e 2005/29/CE. La prima modifica la vigente normativa sulla pubblicità ingannevole e comparativa illecita, così da riservarla all’esclusiva tutela delle imprese; la seconda introduce la nuova disciplina delle pratiche commerciali sleali (ivi incluse le comunicazioni ingannevoli) tra le imprese e i consumatori. Entrambe le discipline saranno applicate dall’Autorità garante della concorrenza e del mercato (AGCM), dotata allo scopo, oltre che del potere di attivarsi d’ufficio, di penetranti poteri investigativi e sanzionatori. (Settembre 2007)

I programmi di clemenza nel diritto antitrust

Il saggio – pubblicato sul sito ‘Giustizia Amministrativa’ del Consiglio di Stato – sviluppa la relazione sui ‘I programmi di clemenza’ svolta alla Giornata di Studio su ‘Promozione e tutela della concorrenza: le novità del “pacchetto Bersani”’ organizzata a Roma il 30 ottobre 2006 dalla Facoltà di Economia dell’Università di Roma ‘Tor Vergata’ e dall’Autorità Garante della Concorrenza e del Mercato. (Marzo 2007)

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