Dear Reader,

This is the 24th issue of the ECN Brief, which is a publication of the European Competition Network (ECN). The ECN is a network of the Member States’ competition authorities (NCAs) and the European Commission (DG Competition). The ECN Brief aims to inform you about the activities of the ECN and its members and to reflect the richness of enforcement actions and advocacy in the Network. It focuses on news of major interest about EU competition law and policy.

This issue informs about the activities of EU competition authorities before the summer break: the reported enforcement actions cover a wide range of sectors such as music copyright management, medicines and insurance. On the side of the legislative, policy and advocacy activities, the Communication of the Commission on Ten Years of Antitrust Enforcement under Regulation 1/2003: Achievements and Future Perspectives, takes stock of the case practice of the ECN and sets out areas for action. The Commission notably aims to further strengthen the position and resources of NCAs and ensure that they have effective powers. This issue also announces the next European Competition Day which will take place in October in Rome.

More news about the activities of the ECN and its members will be published in October 2014. In the meantime, we wish you a nice summer and interesting reading!

Table of contents

Enforcement and Cases

Legislation and Policy

Other issues of interest

ECN Members’ websites

ECN Statistics

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ECN BriefECN Brief 03/2014 Welcome to the July 2014

issue of theECN Brief

DISCLAIMER:This publication is a compilation of contributions from national competition authorities of the European Union and the Competition Directorate General of the European Commission (“the Authorities”). Information provided in this publication is for information purposes only and does not constitute professional or legal advice. The content of this publication is not binding and does not reflect the official position of any Authority. Neither any Authority nor any person acting on its behalf is responsible for the use which might be made of information contained in this publication. ISSN 1831-6107 KD-AG-14-003-EN-N

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AUTHORITIES o France:

- Autorité de la concurrence receives Commitments from Nespresso to lift alleged Barriers to Entry for other Coffee Capsule Manufacturers - Autorité receives Commitments from SNCF to make its Website voyages-sncf.com and competing Travel Agencies subject to similar Conditions in Train Ticket Distribution Sector - Fines on SFR and SRR for Abuse in Mobile Telephony Sector

o Ireland: Competition Authority secures High Court Undertakings from Irish Medical Organisation

o Luxembourg: Competition Authority renders binding Commitments offered by Chamber of Experts abandoning the Use of hourly Fees

o Sweden: - Competition Authority closes Investigation of former legal Monopolist’s Refusal to grant Access to Online Ticket Sales Distribution Channel - Bodybuilding Association changes Application of Loyalty Clause

COURTS

o Austria: - Fines imposed for Vertical Restrictions and Restriction of Online Sales - New Decision imposing Fines in Building Insulation Case - Further Fines imposed for Resale Price Maintenance in Food Sector

o Portugal: Competition Court upholds Competition Authority Decision fining Sport TV for Abuse of Dominant Position

ENFORCEMENT & CASES

Greece: Fines imposed on Undertakings active in Production and Distribution of Poultry MeatOn 2 July 2014, the Hellenic Competition Commission published a decision in which it found that, between 1996 and 2010, 13 undertakings active in the poultry-meat sector in Greece, as well as the sector’s association, coordinated their behaviour to fix the selling prices of fresh and frozen poultry meat, per category of product and per distribution channel downstream (wholesalers, super-markets, butchers, rotisseries) and engaged in market-sharing by allocating customers, with a view to stabilizing their price-fixing agreements.Read more

Italy: The Competition Authority issues Commitment Decision in Insurance SectorOn 20 May 2014, the Authority issued a decision making binding commitments made by major insurance companies to set aside the vertical restrictions, which could hinder the development of networks of brokers offering the services of several insurers. The Authority considers that this would foster rivalry between insurance companies and spur price competition in markets where competitive dynamics have long been sluggish.Read more

The Netherlands: Copyright Collecting Society commits to offer more Options in Music Copyright ManagementBuma/Stemra will make the copyright management system simpler, more flexible, and more accessible for composers and songwriters: they will have more choice as to which categories of rights they wish to transfer to the copyright collecting society.Read more

European Commission fines Servier and five generic Companies for curbing Entry of cheaper Versions of cardiovascular MedicineOn 9 July 2014, the Commission imposed fines totalling € 427 696 508 on the French pharmaceutical company Servier and five producers of generic medicines – namely, Niche/Unichem, Matrix (now part of Mylan), Teva, Krka and Lupin – for concluding a series of deals all aimed at protecting Servier’s bestselling blood pressure medicine, perindopril, from price competition by generics in the EU. Through a technology acquisition and a series of patent settlements with generic rivals, Servier implemented a strategy to exclude competitors and delay the entry of cheaper generic medicines to the detriment of public budgets and patients in breach of EU antitrust rules.Read more

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o Denmark: Analysis of Competition and Productivity in the Danish Retail Sector

o Estonia: Competition Authority recommends more Transparency in Funding of Medical Treatments

o Hungary: Direct Consumer Benefits from GVH’s Activities: a lucrative Investment for Tax-Payers

o Latvia: Competition Council launches Public Consultation on Case Prioritisation Strategy

o Romania: Beer Market under Scrutiny by Competition Council

o Slovenia: Amendments to Competition Act

o Slovakia: - Revised Competition Act enters into Force - Report on Provision of Financial Services to SMEs, local Municipalities and Households in Slovak Republic

o United Kingdom: - Competition and Markets Authority finalises Changes to increase Competition in Private Healthcare - Competition and Markets Authority sets out Changes for Private Motor Insurance - Payday Borrowers pay Price for Lack of Competition

LEGISLATION & POLICY

Greece: Competition Commission adopts Decision defining Terms, Conditions and Procedure for accepting CommitmentsThe Decision adopted on 16 April 2014 by the Hellenic Competition Commission codifies and streamlines the current administrative practice and focuses on accelerating the procedure and making it more efficient. It also clarifies the type of cases eligible for commitments so that the most appropriate procedural route is chosen in terms of the public interest and competition policy.Read more

Sweden: Competition Authority supports Reform of Court Structure for Competition CasesThe Swedish Competition Authority expressed its support for a government proposal according to which competition law cases should be heard by newly created Patent and Market Courts within the framework of the general court system.Read more

European Commission adopts: • Communication on ‘Ten Years of Antitrust Enforcement

– Achievements and future Perspectives’On 9 July 2014, the Commission adopted a Communication identifying areas for action to enhance the enforcement of EU antitrust rules by national competition authorities (NCAs). Based on ten years of experience, the Commission aims to further strengthen the position and tools of the NCAs. The Communication sets out priority areas where further progress is necessary.Read more

• White Paper ‘Towards more effective EU Merger Control’

On 9 July 2014, the Commission adopted a White Paper on proposals to improve EU merger control. The White Paper deals with three main topics: non-controlling minority shareholdings, the EU referral system and convergence.Read more

• Revised Safe Harbour Rules for Minor AgreementsOn 25 June 2014, the Commission adopted a revised Notice on agreements of minor importance (De Minimis Notice) accompanied by a Staff Working Document providing guidance on restrictions of competition by object.Read more

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EVENTS o Bulgaria:

Fourth Meeting of Sofia Competition Forum under Auspices of UNCTAD Secretary General

o Czech Republic: Office for Protection of Competition hosted 2014 ECA Meeting in Prague

o Latvia: Competition Council organised 2nd Lawyers’ Forum

o Poland: OCCP hosted Decentralised Lunch Talk

o Slovakia: Memorandum of Cooperation between Czech Office for Protection of Competition and Antimonopoly Office of Slovak Republic

CONTACTS

ECN STATISTICS

Access to Commission Cases

Training of Judges

OTHER ISSUES OF INTEREST

© European Union, 2014. Reproduction is authorised provided the source is acknowledged. This publication may contain links to other websites. Linked information is subject to use conditions, disclaimers, copyright and any other conditions and limitations governing linked websites or otherwise applicable.

Italy: European Competition Day in Rome on 10 October 2014The Italian Competition Authority will host the next European Competition Day in October 2014, which will also mark the Authority’s 24th anniversary.Read more

Lithuania: Competition Conference in Vilnius in September 2014On 10 September, the Lithuanian Competition Council, together with Vilnius University, will organize the 11th Baltic Competition Conference on ‘Competition Enforcement: Trends and Case-Studies’. The core themes of the conference are: economic analysis in vertical agreements, competition enforcement in internet-based trade and the concept of a single economic unit in bid-rigging cases. The keynote speech will be delivered by Richard Whish, Professor Emeritus at King’s College London, QC. Attendees will include high-level representatives from academia, EU competition authorities, the OECD and the corporate sector.Read more

ECN members’ websites

Number of envisaged decisions by national competition authority; types of envisaged decisions etc.: http://ec.europa.eu/competition/ecn/statistics.html

Case search

• 2014 Call on ‘Training of national Judges in EU Competition Law and judicial Cooperation’: Deadline approaching • Info Day on Training of Judges Programme

Personalia

• Hungary: New Member appointed to the Decision-Making Body of the GVH

• Poland: Appointment of two new Vice-Presidents of OCCP

Annual Reports

• Slovakia: Annual Report 2013 published

Link to the Annual Reports of all ECN Members

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• Greece: The Hellenic Competition Commission fines Poultry Meat Producers and Trade Association for participating in long-lasting Cartel

On 2 July 2014, the Hellenic Competition Commission (HCC), following an ex officio investigation, published a decision (HCC Decision 563/VΙI/2013, Government Gazette Issue B’ 1808) in which it found that thirteen undertakings active in the poultry-meat sector in Greece, as well as the sector’s association (SPEE) infringed Article 1 Law 703/1977 (now Article 1 Law 3959/2011) and Article 101 TFEU, by engaging in agreements and/or concerted practices consisting in setting (minimum) prices and price increases, as well as in market-sharing. The undertakings involved coordinated to fix the selling prices of fresh and frozen poultry meat, per category of product and per distribution channel downstream (wholesalers, super-markets, butchers, rotisseries). Moreover, they engaged in market-sharing by allocating customers, with a view to stabilizing their price-fixing agreements.

The collusive scheme was implemented through regular meetings at the premises of the trade association and elsewhere, as well as follow-on meetings to monitor the implementation of the successive agreements. Overall, the anti-competitive conduct lasted from 1996 to 2010, although not all parties were involved for the entire period of the said single and continuous infringement.

Contemporaneous evidence in this case included a written cartel agreement signed by the cartel participants, minutes and letters recording the cartel meetings (many of them mentioning attendees), invitations to meetings, as well as lists of prices of undertakings discovered at the premises of their competitors during inspections.

The distinct and autonomous role of SPEE as a cartel member was also established by the HCC. The SPEE’s Director kept and/ or drafted many of the contemporaneous documents and was in charge of keeping the cartel members informed. He was also the author of articles in SPEE’s magazine which included several anticompetitive recommendations and references to price coordination.Furthermore, several clauses of SPEE’s statutes were found by the HCC to constitute decisions of an association of undertakings restricting competition and their abolition or amendment was ordered in the HCC’s decision.

On the basis of the gravity and duration of the infringement, the HCC imposed fines totalling € 39 900 000 on the cartel participants. The fines were fixed taking into account the individual participation of each entity in the infringement. A fine was not imposed on one undertaking which had distanced itself from the cartel on several occasions in writing. One cartel participant benefitted from a reduction of the fine for having acknowledged several aspects of the infringement (mitigating circumstance) and all cartel participants except SPEE saw their fines exceptionally reduced, after the application of the maximum threshold, due to the prolonged economic crisis in Greece as well as the deterioration of the financial results of the sector and the difficulty in securing funding from the banking system.

See press release (in English).

• Italy: The Italian Competition Authority issues Commitment Decision in Insurance SectorOn 20 May 2014, the Italian Competition Authority (ICA) issued a commitment decision, accepting the corrective measures proposed by major national insurance companies to meet the competition concerns stemming from their vertical agreements with insurance brokers and making them binding.

The investigation had been launched a few months earlier upon a complaint lodged by the industry association of insurance brokers, alleging that existing contractual arrangements with major insurance companies de facto prevented brokers from dealing with more than one insurance company and thereby

ENFORCEMENT & CASES

AUTHORITIES

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infringed Article 101 TFEU.

In Italy, the liberalization package adopted by the Government in 2006 in the insurance sector banned all exclusivity clauses in agreements between insurance companies and brokers, in an effort to open the market and increase price competition, particularly in the sector of mandatory motor insurance. Following its investigation, the ICA considered that the network of parallel agreements between brokers and insurers – while formally complying with the applicable regulatory framework – could significantly narrow the scope of and dilute incentives for the brokers to offer the services of several companies.

In order to meet the authority’s concerns, the parties under investigation proposed to the ICA a set of commitments, whereby they agreed to:

1) eliminate all contractual references to exclusivity, as well as any requirement of providing prior information to the insurer, were a broker to sign a contract with a different service provider;

2) abolish all contractual provisions which may discourage brokers from offering services of other insurance companies, with specific reference to the prohibition on using a single insurance company’s premises, IT tools and bank accounts, to carry out business on behalf of other insurance companies;

3) apply non-discriminatory economic conditions to reward brokers, irrespective of whether they work for one or more insurance companies, and eliminate all fidelity schemes resulting from the Brokers National Contract of 2003.

The ICA deemed the proposed commitments necessary and sufficient to meet its competition concerns, since they set aside the vertical restrictions which could hinder the development of networks of brokers offering the services of several insurers. The Authority considers that such market development would foster rivalry between insurance companies and spur price competition in markets - such as non-life insurance, including mandatory motor insurance – where competitive dynamics have long been sluggish. The Authority made the proposed commitments binding upon the undertakings concerned and closed the proceedings without finding an infringement.

See both the decision (in Italian) and the press release (in Italian) here.

• The Netherlands: Copyright Collecting Society Buma/Stemra commits to offer more Options in Music Copyright Management

The Dutch copyright collecting society Buma/Stemra will offer composers and songwriters more options in the management of their music copyrights. This has been laid down in commitments offered by Buma/Stemra to the Netherlands Authority for Consumers and Markets (ACM) which were made binding on 3 June 2014. These commitments were offered following an ACM investigation into possible abuse of dominance by Buma/Stemra in music copyright management.

Music composers and songwriters need Buma/Stemra for the collection of royalties from performances of their work on traditional media channels such as television and radio, but due to the technical means available, not necessarily for performances on the Internet. Until now, Buma/Stemra worked with copyright transfers in a sort of all-in-one package, and a simple procedure to limit the transfer to part of the composer/songwriter’s copyrights to Buma/Stemra did not exist. In practice, this meant that composers and songwriters had little choice and basically no opportunity to sell and/or exploit their lyrics or compositions online themselves or via another undertaking than Buma/Stemra.

Following on the ACM’s investigation, Buma/Stemra will make the copyright management system simpler, more flexible, and more accessible for composers and songwriters. Composers and songwriters will have more choice as to which categories of rights they wish to transfer to Buma/Stemra. With this new structure, it is likely that more ways to stream and download music will be introduced. Composers and songwriters will thus benefit, as will users.

In the next few months, Buma/Stemra will bring these new music copyright management options to the

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attention of composers and songwriters through various means such as information on its website, and at a conference at Eurosonic Noorderslag 2015, an annual music festival in the Dutch city of Groningen. In addition, an online calculation tool will be set up that will help composers and songwriters decide whether or not to transfer all or part of their copyrights to Buma/Stemra. This new structure will be introduced in 2014.

See press release (in Dutch).

• European Commission fines Servier and five generic Companies for curbing Entry of cheaper Versions of cardiovascular Medicine

On 9 July 2013, the European Commission (the Commission) fined the French pharmaceutical company Servier € 330 997 200 and five producers of generic medicines – namely, Niche/Unichem, Matrix (now part of Mylan), Teva, Krka and Lupin – in total € 96 699 308. The decision concerns a series of deals all aimed at protecting perindopril, Servier’s blockbuster medicine, from price competition by generics in the EU which took place in in the period from November 2004 to May 2009 and infringed Articles 101 and 102 TFEU (the Decision).

Perindopril is a blood pressure control medicine. It used to be Servier’s best-selling product at the time the practices took place. During the investigated period, Servier held significant market power over the perindopril molecule. No antihypertensive medicines other than the generic versions of perindopril were able to meaningfully constrain Servier’s sales and prices. Servier’s compound patent for perindopril expired, for the most part, in 2003. Producers of cheaper, generic versions of perindopril were intensively preparing their market entry. The generic competitors continued to face a number of so-called ‘secondary’ patents relating to processes and forms. These provided a more limited protection for the product that Servier described as its ‘dairy cow’.

In order to enter the market and overcome the remaining obstacles, generic companies sought access to patent-free products or challenged Servier’s ‘secondary’ patents that they believed were unduly blocking them. There were very few sources of non-protected technology to produce perindopril. In 2004, Servier acquired the most advanced one. This forced a number of generic projects to stop and therefore delayed their entry. Servier recognised that this acquisition merely sought to ‘strengthen the defence mechanism’. The technology was never put to use.

With this way to the market cut off, generic producers challenged Servier’s patents before courts. However, between 2005 and 2007, virtually each time a generic company came close to entering the market, Servier and the company in question settled the challenge. The investigation showed that these were no ordinary settlements to save time and costs. Here, the generic companies agreed to abstain from competing in exchange for a share of Servier’s rent. This happened five times between 2005 and 2007. One generic company acknowledged that it was being ‘bought out of perindopril’. Another insisted that ‘any settlement will have to be for significant sums’, to which it also referred as a ‘pile of cash’. In total, cash payments from Servier to generics amounted to several tens of millions of euros. In one case, Servier offered a generic company a licence for seven national markets; in return, the generic company agreed to ‘sacrifice’ all other EU markets and discontinue its efforts to launch perindopril there. Through this series of agreements, Servier thus gained the certainty that the generic companies would stay out of its key national markets and refrain from legal challenges for the duration of the agreements.

It is legitimate – and desirable – to apply for patents (including ‘secondary’ patents), to enforce them, to transfer technologies and to settle litigation. However, the Decision finds that Servier misused such legitimate tools. It shut out a competing technology and bought out a number of competitors that had developed cheaper medicines. Hence it avoided competing on the merits. Such behaviour violates EU antitrust rules that prohibit the abuse of a dominant market position (Article 102 TFEU). Each of the settlements between Servier and its generic competitors was also an anticompetitive agreement prohibited by Article 101 TFEU.

Experience shows that effective generic competition drives prices down significantly and brings large benefits to patients and public budgets. In 2007, prices of generic perindopril dropped on average

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by 90% compared to Servier’s previous price level in the UK. This occurred when the only remaining legal challenger in the UK obtained the annulment of Servier’s then most important patent. In internal documents, Servier however commented proudly on their ‘great success = 4 years won’, referring to the expiry of the perindopril molecule patent back in 2003.

The Decision follows on earlier decisions in the Lundbeck case (June 2013, see ECN Brief 3/2013) and the Johnson&Johnson/Novartis case (December 2013) concerning ‘pay-for-delay’ practices. These practices should be regarded as highly harmful for consumer welfare. Each day of delay represents a substantial windfall profit for the originator company and a loss for consumers. The graph below illustrates this mechanism. “Pay-for-delay” practices can also be harmful for dynamic competition. They relieve, to a certain degree, the originator companies from the pressure to compete by innovating on new products.

The Commission based its fines on its 2006 Guidelines on fines. In setting the level of the fines, the Commission took into account the duration of each infringement and its gravity.

More information is available on the Commission website.

• France: The Autorité de la concurrence receives Commitments from Nespresso to lift alleged Barriers to Entry for other Coffee Capsule Manufacturers

In the context of proceedings initiated by the Autorité de la concurrence (the Autorité) following complaints lodged by the company DEMB (the “L’Or” espresso brand) and the Ethical Coffee Company, Nespresso proposed, in April 2014, a series of commitments designed to lift alleged barriers to entry for other producers of coffee capsules compatible with Nespresso coffee machines, as well as alleged barriers to their growth.

The Autorité, which is the first competition authority to scrutinize these practices, carried out a market test in order to check whether the proposed commitments are sufficient to allay the competition concerns identified. The market test has been completed on 19 May 2014.

The practices at stake

Nespresso is the first operator to launch an espresso coffee machine working with single portions of coffee sold in capsules. Nespresso offers these coffee capsules under its own Nespresso brand. In 2010, two other companies began to sell capsules compatible with Nespresso machines in France. Since then, other compatible capsule manufacturers have entered the market. In the context of complaints lodged by Nespresso’s competitors with respect to capsules, the Autorité’s investigation services found that Nespresso appears to have implemented various practices that encourage consumers to use only Nespresso-Brand capsules in their Nespresso machines. It appears that Nespresso may have consequently abused its dominant position by linking the purchase of its capsules to that of its coffee machines, with no objective justification, thereby excluding manufacturers producing competing capsules.

The Autorité identified three majors competition concerns: (i) from a technical point of view, subsequent modifications to Nespresso machines have had the effect of rendering capsules produced by competing manufacturers incompatible with the new models, (ii) from a legal point of view, Nespresso used wording

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on the packaging, in the instructions for use and in the warranty which encourages consumers to use only Nespresso brand capsules on Nespresso coffee machines, and (iii) from a commercial policy point of view, Nespresso has spread messages to the press encouraging consumers to use only Nespresso brand capsules.

The commitments proposed by Nespresso

To address these competition concerns, Nespresso has proposed three types of commitments which would remain in force for a period of seven years:

- A notification to competing capsule manufacturers of all modifications to the Nespresso machines that are liable to affect the use of the capsule in the said machine at least three months prior to the implementation of such modifications;

- The implementation of warranty conditions which apply regardless of the brands of capsules used in its machines;

- A policy to refrain from making comments that would discourage consumers from using competitors’ capsules: as part of a new compliance programme to be set up, Nespresso agrees in particular to refrain from making any comment about competitors’ capsules.

The Autorité’s board will now invite the parties to a hearing during which it will examine the observations of third parties. It may request these commitments to be amended or supplemented before closing the proceedings or, in the event that the commitments are still not sufficient, the Autorité may resume the contentious proceedings.

See further market test (in French) and proposed commitments (in French).See also press release (in English).

• France: The Autorité de la concurrence receives Commitments from SNCF designed to make its Website voyages-sncf.com and competing Travel Agencies subject to similar Conditions in Train Ticket Distribution Sector

In the context of proceedings initiated by the Autorité de la concurrence (the Autorité) following a complaint by AS Voyages, SNCF, the national incumbent railway operator, has proposed a series of commitments in order to put its website voyage-sncf.com (VSC) and travel agencies on an equal footing.

The Autorité carried out a market test which was completed on 28 May 2014 to check whether the proposed commitments are sufficient to allay the competition concerns identified.

The practices at stake

The Autorité’s investigation found several elements indicating that travel agencies may be treated dif-ferently from VSC by SNCF, and that SCNF may thereby have abused its dominant position and infringed national and European competition rules. The Autorité suspects in particular:

- the application of unequal tariff conditions between VSC and competing agencies in the distribution system set up by SNCF;

- a dissuasive pricing structure of the data proposed by SNCF to travel agencies, which may constitute a barrier to the entry of new competitors;

- a risk of exchanges of strategic information about competitors between SNCF entities: the data-processing services company (VSC-T) handles requests from VSC and competitors and there is no separation between VSC-T and VSC;

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- a risk of confusion between SNCF and VSC: the provision of timetables on the sncf.com site and links to VSC for reservations can create a competitive imbalance.

The proposed commitments

To address these competition concerns, SNCF has proposed commitments to prevent VSC from enjoying preferential treatment in comparison with its competitors. It offered in particular:

- to apply similar conditions to VSC and competing agencies on the commissions received on their train ticket sales;

- to propose to the agencies to transfer the current billing systems to a system that uses the same billing units and incentives as VSC, if they wish;

- to isolate within its data-processing services company (VSC-T) a dedicated team to be responsible for projects and the management of electronic ticket distribution tools for the use of travel agencies;

- to modify its internet site voyage-sncf.com so as to separate access to timetables and reservations.

The Autorité’s board will invite the parties to a hearing, during which it will examine the observations of third parties. It may request these commitments to be amended or supplemented before closing the proceedings, or, in the event that the commitments are still not sufficient, the Autorité may resume the contentious proceedings.

See market test (in French) and proposed commitments (in French).See also press release (in English).

• France: The Autorité de la concurrence imposes Fine on SRR, a Telecom Company operating in two French Overseas Islands for Abuse in Mobile Telephony Sector and on its Parent Company SFR

On 13 June 2014, the Autorité de la concurrence (the Autorité) imposed a fine of € 45 900 000 on SRR a telecom company operating in the overseas island of La Réunion and its parent company SFR, for having infringed Article 102 TFEU and the corresponding national provision through the implementation and maintenance (for over 12 years in La Réunion and over 3 years in Mayotte) of unfair pricing differences between calls made to other customers of the SRR network (on net calls), and calls to its competitors’ networks (off net calls), that were charged at a higher price. This practice resulted in a ‘club effect’ (i.e. the propensity for close relatives to regroup under the same operator) with likely exclusionary effects.

The practices at stake

As the sole operator in La Réunion until the year 2000, and until 2006 in Mayotte, SRR held a market share of up to 70% and still currently accounts for over half the market, in competition with Orange and Outremer Télécom.

As soon as Orange entered the market at the end of the year 2000, SRR implemented excessive pricing differences in relation to the costs borne for call terminations between calls made within its network and calls made to competitors’ networks.

The procedure and the decisions

In a first decision issued in 2009 imposing interim measures, the Autorité ordered SRR (several weeks before the peak sales period of the Christmas and New Year holidays) to end the excessive pricing differences linked to the networks that its customers were calling. The company did not challenge this decision.

In 2012, the Autorité fined SRR € 2 000 000 for not having fully complied with its 2009 decision. Indeed

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for several deals offered in La Réunion in 2010, SRR maintained a pricing difference between ‘on net’ and ‘off net’ calls, which exceeded the differences in costs borne by the operator. The operator did not challenge this decision either.

The Autorité has now issued its decision on the merits of the case. It stated that SRR implemented excessive pricing differentiation between calls made within its network and calls made to competitors’ networks. This pricing difference was not justified by the costs borne by SRR for routing these communications.

Indeed, pricing differences were more than three times higher than the differences in costs borne by SRR in La Réunion. In Mayotte, pricing differences were sometimes more than 50% higher than the differences in costs borne by the operator. For text messages, in both La Réunion and Mayotte, the pricing differences noted were also not justified by differences in price, as there is no additional cost linked to the sending of a text message to a competitor’s network.

The excessive pricing differentiation between ‘on net’ and ‘off net’ voice calls and text messages magnified the ‘club effect’, thus encouraging consumers to subscribe to SRR, which had the biggest customer base within the territory (560 000 subscribers out of 800 000 in 2007). The practice was also found to instill in consumers the image of competitors’ networks as too expensive to call, and reduced those competitors’ financial resources and investment capacities through the attrition of their call termination revenues. SRR did not challenge the statement of objections and committed to adopting an antitrust compliance programme. It was therefore granted an 18% fine reduction. See full text of the decision (in French) and press release (in English).

• Ireland: The Competition Authority secures High Court Undertakings from Irish Medical Organisation

The Irish Medical Organisation (IMO) has provided undertakings to the Irish High Court (i) not to organise or recommend the collective withdrawal of services or boycotts by its members and (ii) to advise its members that they should decide individually and not collectively whether to participate in publicly funded GP health services on such terms as are offered by the Minister for Health. These undertakings resolve the Competition Authority’s (the Authority) concerns which led it to institute proceedings against the IMO in the High Court in July 2013 on the basis of EU and national competition provisions. The undertakings form part of a settlement agreement reached between the Authority and the IMO on 28 May 2014. The agreement also contains a number of other provisions which confirm the Authority’s position - from the point of view of competition law enforcement - regarding the role of the IMO in any process of engagement with the Minister for Health and/or the Health Service Executive, and the limitations to that role.

Isolde Goggin, Chairperson of the Authority, said ‘This is a good outcome for both patients and the State. It allows the process of reform of the health sector to move ahead while ensuring costs are not increased through anti-competitive behaviour. We are happy that the settlement terms represent a positive outcome for all those who avail of publicly funded GP health services and those who ultimately pay for those services – taxpayers.’

The Authority initiated proceedings against the IMO in July 2013 following the IMO’s refusal to rescind a decision of its GP Committee to withdraw from the provision of certain patient services in protest at proposed Government cuts to fees paid to GPs under the General Medical Services (GMS) contract. Competition law prohibits private undertakings such as doctors in general practice from getting together to agree the fees they charge for their services. The settlement agreement reiterates and clarifies key aspects of the Authority’s position regarding the relationship between the IMO and the Department of Health/HSE relating to discussions on publicly funded GP health contracts. The terms of the settlement set out, from a competition law perspective, the nature of the IMO’s role in such a process and the safeguards which are necessary to ensure that competition law is not breached and patients and taxpayers are protected. In particular, it emphasises that the Minister must make the final decision on contract terms and conditions, including fees.

See further here. Press spokesperson: Clodagh Coffey, Communications Manager (email: cc@tca.ie Tel: 00 353 1 8045406)

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• Luxembourg: The Competition Council renders binding Commitments offered by Chamber of Experts abandoning Use of hourly Fees

By decision of 26 May 2014, the Competition Council accepted the commitments offered by the Chamber of Experts of the Grand Duchy of Luxembourg (CEL) and closed the infringement proceedings opened on the basis of Article 101 TFEU and Article 3 of the national competition law (Law of October 23, 2011). The CEL is an association of professional experts in the fields of construction, arts, finance, science and technology, engineering, medical science and transport.

In the context of an ex-officio investigation, the Competition Council considered that by setting up and circulating to its members a list of hourly fees to be charged to the private sector, based on the list established by the Chamber of Architects, the CEL was allegedly infringing both Article 101(1) TFEU and Article 3 of the Luxembourg competition law. Therefore, it indicated in its Statement of Objections (‘SO’) to the CEL that it would order the immediate termination of the alleged infringement and impose fines on CEL.

In reaction to the SO, the CEL offered commitments to adopt a number of measures to eliminate the competition concerns raised such as the immediate withdrawal of the list from its website as well as from any other document containing such list, the amendment of Article 14 of the deontological code of CEL as well as the prompt information of the CEL members that the list no longer applies.

In its decision, the Competition Council held that that the commitments, to be implemented by 1 June 2014, according to which the experts’ fees and rates will be set as a result of a free negotiation with the client at the time of signing the contract, meet its competition concerns.

The Competition Council therefore rendered the commitments binding and considered that there was no need for any further action.

• Sweden: The Competition Authority closes Investigation of former legal Railway Monopolist’s Refusal to give Access to Online Ticket Sales Distribution Channel

On 14 May 2014, the Swedish Competition Authority (SCA) closed its investigation on the train operator, and former legal monopolist, SJ’s refusal to give access to its online ticket sales distribution channel ‘SJ-online’ (i.e. web-page, mobile web-page and application on mobile phone).

In April 2014, the SCA received a complaint from the train operator MTR Express, arguing that SJ’s refusal to give access to its online ticket sales distribution channel SJ-online constituted an abuse of its dominant position on the market for long-distance train tickets. MTR Express intends to enter the railway market of passenger transport in 2015, primarily on the route between the two largest cities in Sweden. It argued that access to SJ-online was indispensable in order to enter and compete on the market for long-distance passenger transport in Sweden and requested the SCA to issue an interim injunction.

The SCA found that for the purpose of the investigation it was not necessary to define a relevant downstream market or a relevant upstream market on which SJ held a dominant position. The SCA noted that the case did not concern a refusal to supply technical information, such as data on routes or timetables. The question was whether SJ-online was indispensable as a marketing channel for train tickets. In the assessment as to whether SJ-online constituted an essential facility, the SCA took guidance from the ECJ’s well-known Bronner case (Case C7/97 – Bronner v. Mediaprint [1998] ECR I 7791). It concluded that the investigation did not show any technical or legal obstacles making it impossible, or even unreasonably difficult from an economic perspective, to set up and operate a separate online ticket sales distribution and reach potential customers to the extent necessary in order to enter and operate on the relevant market. Hence the investigation did not show that SJ-online was, in the circumstances prevalent in Sweden, an essential facility. For these reasons the SCA decided to close its investigation.

See full text of the decision (in Swedish).

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• Sweden: Bodybuilding Association changes Application of Loyalty ClauseThe Swedish Competition Authority (SCA) has investigated whether a so-called loyalty clause applied by the Swedish Bodybuilding Association, SKKF, could be anti-competitive vis-à-vis other organisers of bodybuilding and fitness competitions. The investigation was closed on 28 May 2014 after the Association notified the SCA of relevant modifications to the application of its rules.

SKKF operates as the official association of bodybuilding and fitness sport organisations in Sweden and is a member of the International Body Building Federation, IFBB. SKKF organises Swedish championships in bodybuilding, fitness sport, etc.

According to SKKF’s rules, members who compete or otherwise participate in contests that are not approved or authorised by SKKF or IFBB can be fined or suspended. Athletes who have taken part in an unsanctioned event must also test for doping, at their own expense, before they are allowed to compete at SKKF events again.

BMR Sports Nutrition AB, an organiser of unsanctioned bodybuilding and fitness events, lodged a complaint before the SCA alleging that the loyalty clause restricts competition, as it prevents event organisers other than SKKF from effectively competing with the latter and its member organisations. SKKF, on the other hand, claimed that the loyalty rule is necessary to ensure that its members are free from doping.

In the course of the investigation, SKKF notified the SCA that athletes, coaches, officials and judges will no longer risk suspension or fines for participating in unsanctioned competitions. However, the requirement remains for a doping test at the athletes’ own expense before they are allowed to compete at SKKF events again.

The Association has notified its member athletes and clubs of these changes via its newsletter and website.

In these circumstances, the SCA decided to close the case without concluding whether the investigated behaviour infringed the competition rules.

COURTS

• Austria: Fines imposed for vertical Restrictions and Restrictions of Online SalesSince March 2014, the Cartel Court adopted several decisions imposing fines for vertical restrictions including RPM and restrictions of online sales infringing Article 101 TFEU and § 1 Austrian Cartel Act: a fine of € 350 000 was imposed on Pioneer Electronics Deutschland GmbH; € 1 230 000 on Media-Saturn BeteiligungsgmbH; € 100 000 on Hans Lurf GmbH; € 50 000 on SSA Fluidra Österreich GmbH and € 372 000 on Grundig Intermedia GmbH.

Investigations carried out by the Federal Competition Authority (BWB), including inspections in Austria and in Germany on the basis of Article 22 of Regulation 1/2003, revealed the existence of several anticompetitive vertical practices in the consumer electronics sector. In February 2014, following the investigations, the BWB filed applications against companies in the consumer electronic industry and electronic retail sector.

In Pioneer’s case, it was established that along the negotiations on purchase prices, resale prices were agreed with a number of retailers in 2010 and 2012. Furthermore, restrictions of online sales were applied. Several high-end products sold under a selective distribution system, particularly receivers, were not to be sold via the internet. Pioneer also repeatedly contacted dealers with requests to remove offers below a certain price level from their websites.

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Grundig was also found to have engaged in vertical agreements on resale prices with retailers between early 2009 and May 2013 and implemented its pricing policy by limiting supplies to certain retailers.

Lurf, a company acting as importer and distributor in the consumer electronics sector, engaged in similar restrictive practices, particularly regarding resale prices via online channels.

As retailer, Media-Saturn was engaged in vertical restrictions of the type described above with a number of suppliers. These included price-fixing as well as practices restricting distribution via the internet.

The investigations carried out in the SSA Fluidra case revealed the existence of similar practices regarding robotic pool cleaners, between mid-2011 and mid-2013. SSA Fluidra, a company acting as importer, and several retailers were found to have agreed on minimum resale prices as well as on restrictions of online sales.

All undertakings concerned cooperated with the BWB and acknowledged the facts brought forward by the BWB in its applications to the Cartel Court. The Court followed the BWB’s applications and imposed the fines proposed.

All decisions are final since the parties have waived their right to appeal. Further proceedings regarding the consumer electronics sector are still pending and decisions are expected during the coming weeks.

See press releases (in German) for Pioneer, Grundig Intermedia GmbH, Media-Saturn BeteiligungsGmbH, and SSA Fluidra Östereich GmbH as well as the court decisions (in German) in Pioneer Electronics Deutschland GmbH and Media Saturn BeteiligungsGmbH.

• Austria: New Decision imposing Fines in Building Insulation CaseOn 16 May 2014, the Cartel Court imposed a fine of € 290 000 on Swisspor, a manufacturer of building insulation materials, for infringing Article 101 TFEU and § 1 Austrian Cartel Act. The Court found that the undertaking participated in infringements of competition law in the period 2006-2011, including RPM and the exchange of information with competitors via the exchange of price lists aiming at fixing prices.

This decision concerning the building insulation sector follows earlier enforcement activities of the Federal Competition Authority (BWB) in this area (see ECN Brief 5/2012 and ECN Brief 2/2013).

The case originated in 2011 when the BWB conducted inspections at the premises of several manufacturers of building insulation materials. Following further investigation, the BWB opened proceedings against several manufacturers and retailers for anti-competitive agreements containing vertical (RPM) as well as horizontal elements.

In the case at hand, the undertaking concerned cooperated with the BWB (including agreeing to an additional voluntary inspection) and acknowledged the facts brought forward by the BWB in its application to the Court.

The decision is final since the undertaking waived its right to appeal. Proceedings against other undertakings involved in the anti-competitive practices described above are still pending.

Press spokesperson: Nathalie Maierhofer; Nathalie.maierhofer@bwb.gv.at; tel. +43 (0)1 24508 - 320.

• Austria: Further Fines imposed for Resale Price Maintenance in Food SectorIn four decisions adopted in May 2014 (27 Kt 14/14, 29 Kt 27/14 of 7 May 2014, 27 Kt 22/14 of 19 May 2014 and 24 Kt 25/12 of 21 May 2014), the Cartel Court imposed fines on three breweries and one company providing services to the members of a franchise system (in this context acting as an intermediary between producers and franchisees) for the infringement of Article 101 TFEU and § 1 Austrian Cartel Act through resale price maintenance (RPM).

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A fine of € 52 500 was imposed on Braucommune Freistadt, € 58 000 on Hirter Brauerei and € 196 875 on Stiegl Brauerei for having agreed upon resale prices (regular prices as well as special offers) for beer and other brewery products with food retailers.

Similarly a fine of € 225 000 was imposed on AFS Franchise Systeme for agreeing on resale prices with their suppliers of brewery products and non-alcoholic beverages.

All cases were initiated by the Federal Competition Authority (BWB) in the framework of its ongoing investigation into the food industry and follow on from the fines imposed in 2013 (see ECN Brief 5/2013 and ECN Brief 1/2014). In all cases, inspections were carried out at the premises of the companies concerned. After the inspections, the companies decided to cooperate with the BWB and acknowledged the facts brought forward by the BWB. The proceedings were ended via settlement procedures. In all cases, the Court followed the BWB’s application and imposed the fines proposed.

All decisions have become final since the parties waived their right to appeal.

See press releases (in German) in cases 27 Kt 14/14, 27 Kt 22/14 of 19 May 2014 and 24 Kt 25/12 of 21 May 2014.

Press spokesperson: Nathalie Maierhofer; Nathalie.maierhofer@bwb.gv.at; tel. +43 (0)1 24508 - 320.

• Portugal: The Competition Court upholds Competition Authority Decision fining Sport TV for Abuse of Dominant Position

On 4 June 2014, the Competition, Regulation and Supervision Court (the Court) upheld a decision of the Portuguese Competition Authority (PCA) finding that Sport TV had abused its dominant position for a period of more than six years on the domestic market of premium sports pay-tv.

On 20 June 2013, the PCA imposed a fine of € 3 700 000 on Sport TV, for applying discriminatory conditions for equivalent services in contracts concluded with undertakings operating in the pay-tv sector for the distribution of Sport TV television channels. Sport TV imposed unfair conditions and limited production, distribution, technical development and investment related to services, thus harming competition and consumers. The pricing policy of Sport TV favoured one of the undertakings on the pay-tv retail market to the detriment of its competitors (see ECN Brief 4/2013).

In its judgment, the Court confirmed that Sport TV had abused its dominant position in the premium sports pay-tv market to the detriment of competition and of consumers. The Court reduced the fine to € 2 700 000, however, as it considered that the infringement did not affect trade between Member States. Moreover, it found that there was not enough evidence that the discriminatory conditions had limited production, distribution and technical development.

The Court’s judgment can be appealed to the Lisbon Appeal Court.

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• Greece: The Competition Commission adopts Decision defining Terms, Conditions and Procedure for accepting Commitments

On 16 April 2014, the Hellenic Competition Commission (HCC) adopted Decision No. 588/2014 defining the terms, conditions and procedure for the acceptance of commitments in the case of alleged infringements of Articles 1 and/or 2 of Competition Law 3959/2011 and 101 and/or 102 TFEU (the Decision).

The Decision codifies and streamlines the current administrative practice of the HCC and focuses on accelerating the procedure and making it more efficient. It also clarifies the type of cases eligible for commitments so that the most appropriate procedural route is chosen in terms of public interest and competition policy. In this context, the Decision: (a) determines the cases where commitments are appropriate, based on the nature of the alleged infringement, the characteristics of the market and the anticipated benefit, whilst considering the deterrent effect of fines, and (b) provides criteria for the initiation of the procedure for assessing and deciding whether to accept the proposed commitments. Further, the Decision introduces the possibility of a consultation procedure on the proposed commitments, to get the views of stakeholders on the proposed commitments. Additionally, the Decision offers guidance to undertakings on the procedure to be followed, the relevant time frames, as well as the terms and conditions for accepting commitments.

The Decision foresees that interested undertakings may propose commitments at any time during the course of an investigation by the HCC. However, the HCC will not consider commitments as appropriate when a Statement of Objections has already been notified to the undertakings involved. The HCC enjoys a wide discretionary power to decide on the initiation of the assessment procedure and retains the right to fully revert to the basic enforcement procedure if, at any time, the conditions for accepting commitments are not satisfied.

Commitments are considered appropriate in cases where the competition concerns (a) are readily identifiable (b) are fully addressed by the commitments offered and no new concerns emerge and (c) may be efficiently resolved and within a short period of time. Further, commitments are appropriate where they contribute to improving the efficiency of the procedure and undertakings are encouraged to signal their interest in discussing commitments as early as possible. The Decision foresees that the HCC will not accept commitments in cases involving serious restrictions of competition and/or serious abuses of dominance, nor in horizontal agreements which could be the object of a leniency application.

The procedure for accepting commitments commences with preliminary meetings with the Directorate General and/or the HCC Rapporteur. It is followed by an evaluation of the criteria for initiation of the procedure, an invitation to interested undertakings to submit their final proposal and possibly by a market consultation on the commitments. Finally, a Report on the acceptance of the final proposal of commitments (as modified during the consultation stage) is notified to the interested undertakings, which are invited together with the complainant to a hearing before the HCC. The procedure ends with the Decision of the HCC rendering the commitments binding and enforceable.

See further press release (in English).

• Sweden: The Competition Authority supports Reform of Court Structure for Competition Cases

In April 2014, the Swedish Competition Authority (SCA) expressed its support for a government proposal according to which competition law cases should be heard by the newly created Patent and Market Courts within the framework of the general court system. The SCA has also recommended the appointment of a commission to investigate whether it should be assigned greater decision-making powers.

LEGISLATION & POLICY

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The Swedish government has proposed to create specific Patent and Market Courts to assess competition, intellectual property and marketing law cases. Two instances would be created within the existing framework of the Stockholm District Court and the Svea Court of Appeal. Under the current system, competition, intellectual property and marketing law proceedings are spread across various different courts.

In its response to the proposal, the SCA argues that it would be beneficial for these types of cases to be assessed by the same set of judges, and it supports the proposal that this be carried out by specific courts within the framework of the existing general court structure. Competition law cases are already heard by a division of the Stockholm District Court in the first instance. This division has built up specific expertise in competition law, and the SCA believes that this structure would also function well at the level of the Court of Appeal. At present competition law cases are appealed to a separate specialised Market Court.

In the SCA’s view, judges designated in the new courts should primarily focus on competition law cases. Such cases are among the most complex cases heard in court and it is extremely important that the judges, special members and economic experts have the requisite level of expertise in that area.

The SCA is however opposed to the proposal to assign the Supreme Court as the final court of appeal for establishing precedent, arguing instead that the Patent and Market Court of Appeal should serve this purpose. Appeals to the Supreme Court would lead to court proceedings being more drawn out, which would go against efforts to make the enforcement of competition law more efficient. It would also contradict the aim of having competition cases decided by judges with specialist knowledge of competition law, built up through a continuous focus on these types of cases.

The government also states that the question of assigning the SCA greater decision-making powers should be investigated further. The SCA has consistently advocated for being granted the power to take binding decisions on administrative fines and on blocking mergers, and has recommended that an inquiry into this be carried out without delay.

• European Commission adopts Communication on ‘Ten Years of Antitrust Enforcement - Achievements and future Perspectives and calls for strengthening Position of National Competition Authorities to ensure effective Enforcement of Competition Rules throughout the EU

On 9 July 2014, the European Commission (the Commission) adopted a Communication identifying areas for action to enhance the enforcement of EU antitrust rules by national competition authorities (NCAs). Since 2004, both the Commission and NCAs have the power to fully enforce the EU’s antitrust rules. Based on ten years of experience, the Commission aims to further strengthen the position, resources and tools of the NCAs. The Communication sets out priority areas where further progress is necessary. The Commission will then assess which policy initiatives should be taken to best achieve these goals.

The entry into force of Regulation 1/2003 in 2004 transformed the competition enforcement landscape, giving NCAs and national courts a key role in applying Articles 101 and 102 TFEU. Since 2004, the Commission and the NCAs have adopted nearly 800 decisions, investigating a broad range of cases, involving different types of infringements and carrying out inquiries in key sectors of the economy.

Close cooperation between the Commission and the NCAs in the European Competition Network (ECN) has underpinned the coherent application of the EU competition rules by all enforcers.

The EU’s competition rules are now being applied on a scale which the Commission could never have achieved on its own. This is a significant contribution to a level playing field for companies operating in the Single Market”, said Commission Vice President in charge of competition policy Joaquín Almunia. ‘It is now time to build on the achievements of the last decade and make sure that the national competition authorities are truly independent and they all have a complete set of effective enforcement tools.’

The Communication ‘Ten Years of Antitrust Enforcement – achievements and future perspectives’ adopted by the Commission identifies a number of areas in which further progress should be made:

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• guaranteeing the independence of NCAs in the exercise of their tasks and making sure that they have sufficient resources;

• ensuring that NCAs have a complete set of effective investigative and decision-making tools; and

• ensuring that effective tools for imposing deterrent and proportionate fines and well-designed leniency programmes are in place in all Member States; and avoiding disincentives for corporate leniency applicants.

The Communication is accompanied by two Staff Working Documents setting out:

(1) a facts-based review of public enforcement during 2004-2013 by the Commission and the NCAs; and

(2) an examination of key aspects of enforcement by the NCAs, with a view to further enhancing it.

The Communication and the Staff Working Documents are available here.

• European Commission adopts White Paper ‘Towards more effective EU Merger Control’On 9 July 2014, the European Commission (the Commission) adopted a White Paper on proposals to improve EU merger control. The White Paper deals with three main topics: non-controlling minority shareholdings, the EU referral system and convergence.

In its White Paper ‘Towards More Effective EU Merger Control’, the Commission makes proposals to be able to deal with the acquisition of non-controlling minority shareholdings and to make referral procedures simpler and faster. Comments can be submitted until 3 October 2014. The Commission may ultimately put forward a legislative proposal to revise the EU Merger Regulation.

The key proposals of the White Paper are:

A light and tailor-made review of acquisitions of non-controlling minority shareholdings which could harm competition. EU merger control does not currently allow the Commission to examine non-controlling minority shareholding which may affect competition, while the rules of some States allow national authorities to do so (e.g. Austria, Germany, UK as well as the US and Japan). The envisaged reform would ensure that the Commission can examine those transactions which may raise competition concerns and have a cross-border impact within the EU. It would not create a significant additional regulatory burden for businesses, since only transactions that appeared to be prima facie problematic from a competition point of view would fall under the revised rules. Those cases would not necessarily have to be notified, but the Commission can select the cases which appear problematic and examine them.

Making case referrals between Member States and the Commission faster and more effective. Under the proposals, the companies who notify a merger could more easily refer a case to the Commission through a simpler procedure. In addition, the rules for Member State to request the referral of a case to the Commission would become more streamlined, to avoid parallel investigations and better implement the one-stop shop principle. The new procedure would also allow Member States to better cooperate amongst themselves when they are not referring a case to the Commission.

Fostering coherence and convergence. The White Paper takes stock of the use of current EU merger control rules and reflects on ways to foster convergence between Member States with a view to enhance cooperation and to avoid divergent decisions in parallel merger reviews conducted by the competition authorities of several Member States.

Making procedures simpler and more efficient. The White Paper also includes other proposals to further simplify merger procedures - for example to exclude from the scope of the Commission’s merger review the creation of joint ventures that will operate outside the European Economic Area (EEA) and will have no impact on European markets. Notification requirements for other non-problematic cases - currently dealt with in a ‘simplified’ procedure - could be further reduced, cutting costs and administrative burden for businesses.

See public consultation documents.

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• European Commission adopts Revised Safe Harbour Rules for Minor AgreementsOn 25 June 2014, the European Commission (the Commission) adopted a revised Notice on agreements of minor importance (De Minimis Notice) accompanied by a Staff Working Document providing guidance on restrictions of competition by object.

The European Court of Justice has consistently held that Article 101 TFEU is not applicable where the impact of an agreement on competition is not appreciable. The revised De Minimis Notice, like the De Minimis Notice of 2001, defines what the Commission considers not to be an appreciable restriction of competition by reference to market share thresholds. Minor agreements between undertakings below the specified market share thresholds are considered to be in a so called ‘safe harbour’, meaning that they are not caught by the prohibition of Article 101 TFEU. Agreements between competitors benefit from the safe harbour if the aggregated market share of the undertakings concluding them does not exceed 10%, while for agreements between non-competitors the market share for benefitting from the safe harbour is 15%. These market share thresholds remained unchanged from the previous 2001 De Minimis Notice.

The main novelty of the revised De Minimis Notice is that it clarifies that agreements which have an anticompetitive object constitute, by their nature and independently of any concrete effects they may have, an appreciable restriction of competition. Such agreements can never benefit from the safe harbour set out in the De Minimis Notice. This clarification reflects and is fully aligned with the ruling of the European Court of Justice in the case Expedia (case C-226/11).

In addition, unlike the 2001 De Minimis Notice, the revised De Minimis Notice does not list specific ‘by object’ or ‘hardcore’ restrictions that do not benefit from the safe harbour. Instead, it states that the Commission will not apply the safe harbour to agreements containing any restriction ‘by object’ or any of the restrictions that are listed as ‘hardcore restrictions’ in current or future Commission block exemption regulations. In that context it is clarified that ‘hardcore restrictions’ are considered by the Commission to generally constitute restrictions by object.

Finally, the revised De Minimis Notice no longer contains explanations about what constitutes an appreciable effect on trade between Member States, because in 2004, the Commission adopted specific guidance on this issue (Commission Notice on Effect on Trade). However, the 2014 De Minimis Notice specifically refers to the rule in the Notice on Effect on Trade that excludes from the scope of EU competition law agreements between parties with an aggregate market share equal to or below 5% and an annual turnover equal to or below € 40 000 000 because they are considered to have no effect on trade. This clarifies that agreements which contain a restriction by object may still fall outside the scope of Article 101 TFEU on the grounds that they have no effect on trade.

The Staff Working Document, accompanying the revised De Minimis Notice, provides a list of types of restrictions that have been regarded as by object restrictions by EU courts or by the Commission in individual cases or as hardcore/by object restrictions in existing block exemption regulations and Commission guidelines. The document is meant to be a practical check-list for companies, especially for SMEs. It is intended to reduce companies’ burden and costs for complying with EU competition rules and to make it easier for them to assess whether their agreements are covered by the De Minimis Notice. The document is without prejudice to developments in the EU Courts’ case law and in the Commission’s decisional practice. The Commission’s competition services will regularly update the examples listed in it in the light of such developments.

See further information here.

• Denmark: Analysis of Competition and Productivity in Danish Retail SectorOn 10 April 2014, the Danish Competition and Consumers Authority (DCCA) published a report on its analysis of competition and productivity in the Danish retail sector, which is characterized by low productivity and high prices. The purpose of the analysis was to promote an environment that underpins a retail sector with high competition and productivity.

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The analysis consists of three distinct parts. The first part concerns the relationships between suppliers and retailers in the Danish grocery sector. The second part takes a look at some of the laws and regulations that provide the framework for the retail sector in Denmark. The third part examines the trends that are expected to influence the retail sector in the years to come.

Many suppliers to the grocery sector in Denmark have expressed criticism of retailers taking advantage of their buying power. The retailers are accused of using their position in the market (as gatekeepers to the consumers) to leverage ‘unfair’ trading practices on the suppliers. To remedy these unfair trading practices, the suppliers have advocated that the trade between suppliers and retailers should be regulated to some degree. However, the DCCA has not found any evidence that trade as it is currently taking place in Denmark has resulted in suppliers going out of business.

Concerning the regulatory framework, the report shows that in comparison to Germany, the Netherlands, Norway, Sweden and the UK, the Danish Planning Act is stricter when it comes to where a company can establish a shop and/or how big it can be. In its analysis, the DCCA finds that the Planning Act is hampering productivity and competition in the retail sector by setting restrictions on establishment. The Landlord and Tenant Act is likewise stricter in Denmark than in the countries mentioned as regards the possibility to conclude contracts with limited duration and/or with regards to termination of such contracts.

The last section of the analysis takes a deeper look into the trends that are expected to influence the retail sector in the foreseeable future and are expected to have a positive influence on competition and productivity in the sector. Among the trends considered in this section are growing e-commerce, more international players and the retailers use of big data, internet and cloud computing.

See Report (in Danish).

• Estonia: The Competition Authority recommends more Transparency in Funding of Medical Treatments

On 21 April 2014, the Estonian Competition Authority concluded its analysis of funding of medical treatments and made a proposal to the Ministry of Social Affairs to amend the Health Insurance Act. This proposal includes clear and transparent criteria for allocating funding to health care institutions by the Estonian Health Insurance Fund.

The proposal concerns particularly specialised treatments which are provided by hospitals that are not listed in the Hospital Network Development Plan (HNDP), such as, for example, treatments provided by eye specialists, rehabilitation, psychiatry, etc. The HNDP comprises mostly hospitals owned by local government or by the state, which are automatically included in the funding list of the Estonian Health Insurance Fund.

According to the analysis, the Health Insurance Fund currently allocates funding mainly to the health care services of HNDP hospitals, thereby leaving other health care providers at a competitive disadvantage.

In the Competition Authority’s view, allocating funding solely to HNDP hospitals creates a market distortion. This may lead to situations where services offered by HNDP hospitals are the only ones funded by the Health Insurance Fund, even if they are more expensive and/or of lower quality. According to the analysis, possible counter-arguments against free competition should be considered on a case-by-case basis and the HNDP hospitals should not automatically be preferred over other health care providers in the process of public funding.

See the text of the proposal (in Estonian).

• Hungary: Direct Consumer Benefits from GVH’s Activities: a lucrative Investment for Tax-Payers

The Hungarian Competition Authority (Gazdasági Versenyhivatal – GVH) has quantified – at least in

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part – the benefits of its activities for economy and society, in other words the financial advantage for consumers. The results of this exercise were published on 20 May 2014.

The result shows that consumers saved at least HUF 58 000 000 000 measured in relation to 2013 prices (approximately € 200 000 0000) thanks to the GVH’s competition supervision proceedings concluded between 2008 and 2012 in the field of agreements restricting competition, abuse of dominance, and mergers.

The gain is more than four times higher than the total GVH budget during the same period.

The impact assessment is based on the assumption that without the intervention of the GVH the goods and services concerned would have been more expensive. The benefits gained from the activities of the GVH thus equal the amount of prevented harmful effects that would have occurred without the GVH’s activities.

For the quantification of benefits, the GVH applied a framework developed and used by leading foreign competition authorities world-wide and which uses conservative estimation methods. Recently the OECD published a guide on the same topic (Guide for helping competition authorities assess the expected impact of their activities), summing up international best practices. Along these lines, for each proceeding taken into account in the assessment, the annual turnover affected by the anti-competitive conduct or the anti-competitive effects of the merger were multiplied by the expected ratio of price rise and by its expected duration. Where case-specific information on the ratio of the price increase and its duration were not available, default values were used (10% and 5% price increases for restrictive practices and for mergers respectively and two years for all types of conduct). This method is relatively easy to adapt and it provides an overview, rather than focusing on one or two cases.

The impact assessment takes into account only direct benefits without having regard to – among other things – the gains achieved through consumer protection proceedings, the deterrent effect of proceedings, or the more widely interpreted gains, such as the competitiveness-enhancing effect of competition.

The methodology was reviewed by the researchers of the Institute of Economics CRES of the Hungarian Academy of Sciences. They found that the calculations of the GVH are in line with international best practices.

See press release (in English).

• Latvia: The Competition Council launches Public Consultation on Case Prioritisation StrategyThe Competition Council (CC) of Latvia has developed and put out for public consultation a draft strategy of case prioritisation on 10 June 2014. The strategy sets out general principles and specific criteria on how to set operational priorities in order to focus the resources of the CC on the effective protection of the public interest and the promotion of consumers’ welfare.

Considering that the CC has to operate with limited resources, it is of great importance that the financial and human resources at its disposal are used for targeted investigations in markets that are important for the public and for removing those infringements which cause the most severe damage. When less harmful infringements are to be tackled, fewer resources can be invested. For example, the authority can act as negotiator between undertakings or, if a case is initiated, ask for a greater participation of the parties into the investigation.

The draft strategy stresses that prohibited practices such as price-fixing, market or customer-sharing or restriction of production or distribution are not to be tolerated. Combating such infringements has therefore been set as one of the key priorities of the CC.

To determine whether a case is a priority, the CC will take the following criteria into consideration: the severity and duration of the potential infringement; the number of persons affected; other legal means of redress available to the undertakings involved; the impact of the situation on the economy; the market position of the undertakings involved; the recurrence of the behaviour as well as whether the authority

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has sufficient information indicating the existence of the infringement. Cases in which the CC would consider providing a novel interpretation of competition law issues or evaluating a market which has not been researched before would also be regarded as significant.

According to the draft strategy, high priority status is always allocated to certain types of cases such as cases where assistance in investigations of the European Commission or other Member-States of the European Union is requested.

When setting out its prioritisation strategy, the CC considered both its own experience and that of other competition authorities, as well as recommendations by international organizations, including the ICN and the ECN.

The public consultation will be closed on 8 September 2014.

See further information (in Latvian).

• Romania: Beer Market under Scrutiny by Competition Council In April 2014, the Romanian Competition Council (RCC) published the preliminary results of its sector inquiry into the national beer market covering the period between 2007 and 2011.

The inquiry reveals that the market is an oligopoly dominated by four big producers with a cumulative market share of 85-90%. These producers are owned by the multinational groups SAB Miller (which owns Ursus), Heineken, Molson Coors (Bergenbier) and Carlsberg (URBB). The other producers present on the market are two domestic producers with large capacities (Romaqua and European Food) and four independent and regional producers.

It appears from the inquiry that the main players have put in place a strategy to enhance their products’ portfolio on different segments, at the same time cutting down competitive pressure, while the smaller producers focused their strategy on private brands for modern retail (hyper/supermarkets).

The RCC also found that contracts (including product promotion and equipment contracts) concluded between the beer producers and HoReCa operators (Hotels, Restaurants, Catering operators) contain clauses which may restrict competition such as exclusivity clauses combined in certain cases with an obligation to buy a minimum volume of beer and/or to limit the supply to some designated distributors. As to the equipment contracts, by which the producers provide HoReCa operators the equipment to sell draft beer for free, the RCC found that clauses providing for an unlimited duration, combined with the absence of provisions allowing for termination of the contract, restrict the possibility for HoReCa operators to switch supplier and to include in their offer other producers’ brands, thereby reducing the competitive pressure on the producer that owns the equipment.

In view of increasing competition in the HoReCa sector, the RCC made recommendations concerning contract duration (maximum five years) and stated that their extension should be subject to renegotiation. It also recommended that HoReCa operators have the possibility to terminate contracts unilaterally without penalties, to buy the equipment for draft beer at a residual price after the first five years and that clauses indicating the distributors to be chosen by HoReCa operators be removed from the contracts.

An interesting particularity of the Romanian beer market brought to light by the inquiry is that draft beer consumption represents less than 5% of total sales of beer on the Romanian market as compared to the other European markets where draft beer consumption is a tradition.

According to the inquiry, the main distribution channels in Romania are: traditional retail (convenience stores) with 52% of sales, HoReCa segment with 25% of sales, modern retail with 15% and cash & carry traders with 8%. Wholesale distribution is mainly carried out through exclusive distribution contracts recommending the resale price or a maximum resale price. These exclusive distribution contracts fall under the block exemption regulation. Consequently, the Competition Council encouraged the two biggest competitors/producers with a market share each of over 30% to assess their exclusive distribution system in order to establish whether the agreements concluded lead to real efficiency gains, countervailing the

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reduction of intra-brand competition.

The preliminary results of the sector inquiry were published in a public consultation in May and the RCC is currently examining the comments received from interested parties.

See press release (in English).

• Slovenia: Amendments to the Competition ActOn 10 May 2014, recent amendments to the Slovenian Competition Act (Prevention of Restriction of Competition Act: Uradni list RS, No. 36/08, 40/09, 26/11, 87/11, 57/12, 63/13 - ZS-K and 33/14) came into force. The main changes concern the adjustment of the powers of the Slovenian Competition Protection Agency (CPA) to conduct inspections. The new system foresees that the competent court must deliver an order authorising the inspection.

Under the previous rules, the CPA had the power to carry out inspections at the premises of undertakings subject to proceedings based on an inspection order issued by the Director of the CPA pursuant to Article 28(1) of the Competition Act. At the end of 2011, the Supreme Court referred to the Constitutional Court for a preliminary ruling on the constitutionality of the said provision, arguing that it infringed certain basic rights guaranteed by the Constitution, inter alia, the inviolability of business premises and the right to privacy in relation to correspondence and other means of communication. In its judgment of 11 April 2013, the Constitutional Court found that Article 28(1) of the Competition Act infringed Article 37 of the Constitution on the privacy of communications. The Constitutional Court found that the regime at stake was unconstitutional since it allowed for the intrusion of private communications without the authorisation of the competent court. The ruling granted the Parliament one year to bring the Competition Act in line with the Constitution. The reform of the Competition Act was initiated after the judgment and during a transitory period of one year. In the meantime the Constitutional Court allowed the CPA to use the former regime with an inspection order from the CPA’s Director.

• Slovakia: Revised Competition Act enters into forceThe Amendments to Act No. 136/2001 Coll. on Protection of Competition entered into force on 1 July 2014. These amendments are intended to solve problems arising from the practise, confirm recent changes in assessment of competition cases and enhance the effectiveness of competition rules. These changes are part of the Antimonopoly Office’s (AMO) overall strategy, which is to build a modern competition authority focused on consumer welfare.

The most significant changes concern the decision-making process and the introduction of new instruments in Slovak competition policy (see ECN Brief 1/2014).

Four Decrees on merger control, the leniency programme, settlement and de minimis, which are part of the revised Act, entered into force on the same day as the amendment.

See press release (in English).

• Slovakia: Report on Provision of Financial Services to SMEs, local Municipalities and Households in Slovak Republic

The Antimonopoly Office of the Slovak Republic (the Office) made a detailed analysis of the financial sector, one of the most important driving forces of the economy. The report was published on 6 May 2014.

According to the report, several markets in the financial services sector have a long-term stable structure and a high degree of concentration, which may indicate lower intensity of competition.

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In its investigation, the Office focused on the conditions for providing certain financial banking products to households, small and medium-sized enterprises and local municipalities, since these clients are characterised by information asymmetry and low bargaining power. The Office has been investigating whether the banks tie the provision of selected types of loans to these categories of clients to the existence of a current account in the corresponding bank. Tying may weaken competition in the field of financial services provision by increasing switching costs and reducing price transparency, which may result in reduced mobility of bank customers and increased barriers to entry for new providers of financial services (especially those who specialise in one product).

The report summarises the Office´s finding as well as recommendations which were sent directly to the banks.

Given the relatively stable high concentration of the market in the area of providing selected banking products and the low bargaining power of some types of bank customers, the Office will continue actively to monitor and evaluate the development of the conditions for providing banking products to these customers.

See detailed press release (in English).

• United Kingdom: The Competition and Markets Authority finalises Changes to increase Competition in Private Healthcare

On 2 April 2014, the Competition and Markets Authority (CMA) published its final report on measures to increase competition in the private healthcare market.

The final report follows a two-year investigation by a Group of independent Panel Members at the Competition Commission (CC), which became part of the new Competition and Markets Authority (CMA) on 1 April.

The CMA has found that many private hospitals face little competition in local areas across the UK and that there are high barriers to entry. This leads to higher prices for self-pay patients in many local areas – and for both self-pay and insured patients in central London, where HCA International Limited, which owns over half of the available overnight bed capacity, charges significantly higher prices to insured patients than its closest competitor.

The CMA has also pointed the finger at incentive schemes, which encourage clinicians including consultants to refer their patients for treatment or tests to particular providers, as a problem which can lead to these referrals being driven by considerations other than quality and price. It also says that the lack of available information on the performance of private hospitals and consultants and on consultant fees means that patients can find it difficult to make informed choices which would drive competition between providers on quality and price.

The CMA’s remedies package in summary is:

• a restriction or ban on certain benefits and incentive schemes provided by private hospital operators to clinicians. Greater transparency is a key requirement together with banning or restricting those benefits and incentive schemes which are likely to have the greatest influence on clinicians advising patients;

• a combination of measures to improve the public availability of information on consultant fees and of information on the performance of consultants and private hospitals;

• the divestiture by HCA International limited of either the London Bridge and the Princess Grace hospitals or the Wellington hospital including Wellington Hospital Platinum Medical Centre;

• measures to ensure that arrangements between NHS trusts and private hospital operators to operate or manage an NHS Private Patient Unit will be capable of review by the CMA. The CMA will be able

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to prohibit arrangements which it decides substantially lessen competition in the relevant local area.

The CMA anticipates that the orders through which the majority of the remedies will be implemented will be made within a period of around six months from the publication of the final report, i.e. by October 2014.

See further information here.

• United Kingdom: The Competition and Markets Authority sets out Changes for Private Motor Insurance

The Competition and Markets Authority (CMA) has set out the changes it proposes to make in the private motor insurance (PMI) market to increase competition and reduce the cost of premiums for motorists.

The CMA will now consult on these measures before publishing the final decision of its independent group of members in September 2014.

In December 2013, the Competition Commission’s (CC’s) provisional findings report found that there was a significant difference between the costs incurred by at-fault insurers in providing a replacement vehicle and the costs charged to the at-fault insurer when the replacement vehicle was provided by others. The CC found that this difference had the effect ultimately of increasing the cost of PMI to consumers.

The CC also found that some price parity clauses in contracts between price comparison websites and insurers had the effect of suppressing competition on price and were likely to lead to higher PMI prices overall. In addition, the CC found that limited information in the sale of PMI-related add-on products to consumers made it difficult for them to compare the costs and benefits of products and to identify best value, in particular in relation to no-claims bonus protection.

At the time of its provisional findings report, the CC published a notice of possible remedies outlining potential measures in response to these problems and, following detailed discussions with a range of industry groups, the CMA has now identified what it considers will be the most effective actions to improve the market for motorists.

The CMA’s proposed measures include:

• a cap on the charges passed to the insurer of an at-fault driver in an accident for the cost of providing a replacement vehicle to the non-fault driver, to reflect more closely the costs incurred and remove significant inefficiencies;

• better information for consumers about their rights following an accident;

• a ban on price parity agreements between price comparison websites and insurers which stop insurers from making their products available to consumers elsewhere more cheaply;

• better information for consumers on the costs and benefits of no-claims bonus protection;

• a recommendation that the Financial Conduct Authority (FCA) look at how insurers inform consumers about other PMI-related add-on products.

The CMA is required to publish its final report by 27 September 2014.

See further information here.

• United Kingdom: Payday Borrowers pay Price for Lack of CompetitionA lack of price competition means that payday loan customers may be paying too much for their loans, according to provisional findings from the Competition and Markets Authority (CMA), published on 11

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June 2014.

In a summary of its provisional findings, the group of independent CMA Panel Members investigating this market says that the absence of price competition could be adding £ 5 (€ 6.27) to £ 10 (€ 12.54) to the average cost of a payday loan, relative to a typical loan of £ 260 (€ 326) taken out for just over three weeks. Given that customers take out around six loans a year on average, a typical customer could save between £ 30 (€ 37) and £ 60 (€ 75) per year if the market were more competitive. Some customers may be getting a worse deal still, given that the gap between the cheapest and most expensive deals for a month-long £ 100 (€ 125) loan is more than £ 30 (€ 37).

The size of the payday lending sector, which has grown rapidly in recent years, suggests the market-wide impact of greater competition could be substantial: the CMA’s indicative estimates suggest that total savings for UK customers from greater competition could be more than £ 45 000 000 (€ 56 410 000) a year, relative to total revenue earned by payday lenders of around £ 1 100 000 000 (€ 1 378 913 000). The CMA will now look at potential ways to increase price competition, including the establishment of an independent price comparison website, clearer upfront disclosure of borrowing costs if a loan is not paid back in full and on time, as well as requiring greater transparency about the role played by lead generators.

These measures would work alongside changes already being made by the Financial Conduct Authority (FCA), the regulator for consumer credit. Moves by the FCA to strengthen consumer protection will mean closer regulation of lenders over issues such as limiting rollovers, restrictions on the use of Continuous Payment Authorities to recover debt from a borrower’s bank account, carrying out proper affordability checks and sensitive treatment of debt problems – and will be followed by the introduction of a price cap at the start of 2015.

See further information here.

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• Italy: European Competition Day in Rome on 10 October 2014

Save the date

EUROPEAN COMPETITION DAYChange and challenges

The Italian Competition Authority is hosting the next European Competition Day, organized under the aegis of the Italian Presidency of the Council of the European Union.

Rome, 10 October 2014The event intends to stimulate high level discussion on the fundamental changes and chal-lenges currently faced by competition enforcers. Participants will focus on the ongoing re-view of Regulation 1/2003, and discuss the role of competition agencies in promoting eco-nomic growth and consumer welfare.

This conference will also mark the 24th anniversary of the Italian Competition Authority.

All information concerning the event will be made available through a dedicated link on the webpage of the Italian Competition Authority www.agcm.it .

The Italian competition authority is looking forward to welcoming you in Rome.

• Lithuania: Conference ‘Competition Enforcement: Trends and Case - Studies’ in Vilnius on 10 September 2014

On 10 September 2014, the Competition Council in partnership with Vilnius University will hold the 11th Baltic Competition Conference ‘Competition Enforcement: Trends and Case-Studies’.

The morning session will start with a keynote speech on ‘Competition Law Enforcement: Recent Trends’ which will be delivered by Richard Whish, Professor Emeritus at King’s College London, QC, and author of numerous publications on competition law.

The conference will be dedicated to three core themes:

OTHER ISSUES OF INTEREST

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- The importance of economic analysis when assessing vertical agreements;

- Competition enforcement in internet-based trade;

- The concept of a single economic unit in bid-rigging cases.

The panel sessions will include speeches by the following competition law experts:

- Dr Lauras Butkevičius, Associate Professor at the Faculty of Law, Vilnius University;

- John Davies, Head of Competition Division at OECD;

- Nils von Hinten-Reed, Managing Partner, CEG Europe, Economics Expert for the European Commission, national authorities, courts and arbitral panels on competition, damages and regulation, including T-mobile and Vivendi, Gazprom;

- Göran Karreskog, Head of the Cartels and Mergers Unit, Swedish Competition Authority;

- Dr Ioannis Kokkoris, Professor at the University of Reading, Executive Director of the Centre for Commercial Law and Financial Regulation;

- Dr Philip Marsden, Deputy Chairman, Competition and Markets Authority, London, Professor, Competition Law and Economics, College of Europe, Bruges;

- Dr Gintarė Surblytė, Senior Research Fellow, Max Planck Institute for Innovation and Competition.

A roundtable discussion between the heads of the competition authorities from Estonia, Latvia, Lithuania and Northern EU Member States will close the conference.

For more information please visit http://kt.gov.lt/en/index.php?show=conf14 or follow the conference on Linkedin.

For registration or information please call (+370 5) 2615170, (+370 5) 2625953 or write to contacts@kt.gov.lt.

• Bulgaria: Fourth Meeting of Sofia Competition Forum under the Auspices of UNCTAD Secretary General

On 16 May 2014, the Commission on Protection of Competition (CPC) hosted the fourth meeting of the Sofia Competition Forum (SCF) which brings together the competition authorities of the Balkan region.

The Secretary General of UNCTAD H.E. Dr. Mukisha Kituyi was a special guest at the event and delivered the keynote speech. The event was attended by the beneficiary countries of the SCF (Albania, Bosnia and Herzegovina, Kosovo, Macedonia, Serbia, Croatia and Montenegro), as well as representatives from the World Bank, OECD, UNCTAD, the European Commission, and the competition authorities of Austria, Italy, Slovenia, Turkey, USA, and Greece. The meeting also welcomed representatives from the academic world and the judiciary.

The topic of this fourth meeting was ‘Competition policy as a driver of economic growth’. The invited guests presented their views and shared their experience on enforcement practices and competition advocacy initiatives. Particular discussion topics were the relationship between competition policy and sector regulations and the new forms of control of market power which would allow addressing unfair trading practices that are not covered by the prohibition on abuse of dominance. The presentations are available here.

Moreover, the preliminary findings of the ‘UNCTAD Peer Review of Albanian competition law and policy’ were presented, as well as the results of the SCF Special project which provides a comparative overview

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of the Balkan competition regimes. The report is available on the SCF website.

The SCF was established in 2012 as a joint initiative of the CPC and UNCTAD with the objective of strengthening cooperation between the competition authorities of the Balkan region, thereby achieving uniform and consistent application of competition rules. The Forum aims to assist countries in that region in adopting and applying competition law in accordance with the highest European and world-wide standards, and to increase the benefits for society of well-functioning markets.

• Czech Republic: The Office for the Protection of Competition hosted 2014 ECA Meeting in Prague

The Office for the Protection of Competition (the Office) hosted the annual meeting of heads of European Competition Authorities (ECA) on 21 – 22 May 2014 in Prague. Besides the representatives of the EU Member States and the European Commission, the heads of the competition authorities of Iceland, Norway and Switzerland and a representative from the EFTA Surveillance Authority also took part in the meeting.

The first day of the conference, which was dedicated to an exchange of information on ongoing cases and recent legislative development in national jurisdictions, was opened by the Chairman of the Office, Mr Petr Rafaj. ‘Modern competition law is experiencing dynamic developments and therefore it is crucial for us to stay informed about recent trends’, stated the Chairman in the opening speech to his colleagues.

The first panel discussion of the second day was dedicated to the functioning of competition and sector regulation within a single authority, as in several countries competition and sectoral regulatory authorities have merged into one institution during the past years. Representatives of the Netherlands, Spain, United Kingdom, Estonia and Belgium described the differentiated approaches to such integration and the problematic issues dealt with by the board of the merged authorities.

The final part of the conference agenda was devoted to the use of commitments decisions when the parties to the proceedings may offer measures to the competition authority to remedy the anti-competitive conduct and the competition authority makes these commitments binding by decision. These decisions allow cases to be concluded within a shorter time period. France, Italy, Croatia and Ireland presented their experiences with this procedure. In the ensuing discussion, the participants agreed that in certain situations, commitments decisions are appropriate and contribute to procedural economy; however, they also warned against preferring this tool to fining decisions.

The 2015 ECA meeting will be organized by Norway, the particular agenda of the meeting has not been decided yet.

ECA was founded in Amsterdam in April 2001 as a forum for discussion of the competition authorities in the European Economic Area (EEA) (the Member States of the European Union, the European Commission, the EEA EFTA States Norway, Iceland, Liechtenstein and the EFTA Surveillance Authority).

See further information here.

Spokesperson: Mr Martin Svanda, martin.svanda@compet.cz, +420 542 167 225.

• Latvia: The Competition Council hosted Second Lawyers’ ForumOn 25 April 2014, the second Lawyers’ Forum was organized by the Competition Council (CC) of Republic of Latvia. The forum serves as a platform for discussion among specialists of the CC and representatives of law firms specialising in competition law. It was dedicated to current problems of competition law, exchange of experience between lawyers and representatives of the CC, and the search for new ways to increase the effectiveness of the CC.

During the opening speech, Mrs. Skaidrīte Ābrama, chairwoman of the CC, stressed that the forum’s importance lies in helping to gain a better understanding of the work on both sides, i.e. the representatives

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of undertakings and the supervisors of competition. This helps the learning process, and brings to light flaws which might burden the effective application of the law if they undiscovered, said Mrs. Ābrama.

Legal professional privilege of correspondence between lawyer and client was the first topic of the Lawyers’ Forum. During the case investigation phase, CC employees are not authorised to see lawyer-client privileged correspondence obtained in dawn raids and use it later as evidence in the courtroom. CC experts illustrated how the practice has been applied by the CC. Currently, protection of privileged correspondence is ensured by an employee of the CC who is involved neither in the investigation nor in the adoption of the decision. In order to render this practice more effective, the experience gained by other EU Member States was discussed.

Due process and the right of an undertaking to be heard formed the second discussion topic. Representatives of law firms explained that undertakings prefer to gain more information during the investigation, as well as to expand the right to be heard in person. At the same time, CC experts described a new practice applied by the CC, i.e. oral hearings. The method is used during proceedings to hear the undertakings on the arguments brought forward by the CC.

The third topic was preparation of merger notifications, where participants examined which information has to be included in a merger notification and which information can be waived upon request to make evaluation by the CC swifter. Lawyers described explanations they would like to receive from the CC to make preparation of a merger notification easier. Which information has to be included in the merger notification, is defined in regulations of the Cabinet of Ministers.

Ideas and opinions put forward in the forum were collected and will be considered in the development of guidelines for undertakings.

The first Lawyers’ Forum was held at the end of 2013, when the proposed amendments to the Latvian Competition Act were discussed. The second Lawyers’ Forum was welcomed by all participants and they expressed the wish for the forum to be organized more often on a regular basis.

• Poland: The Office of Competition and Consumer Protection hosted ‘Decentralized Lunch Talk’ on Implementation of Regulation 1/2003

On 9 May 2014, the Office of Competition and Consumer Protection (OCCP), in partnership with the Global Competition Law Centre (GCLC), organised a lunch talk entitled: ‘Taking stock of the implementation of Regulation 1/2003: the Polish perspective’.

The event was part of a series of ‘Decentralized Lunch Talks’ launched by GCLC in cooperation with the French, Italian, Polish and Belgian competition authorities. Its aim was to take stock of 10 years of enforcement of Regulation 1/2003 from the perspective of selected EU Member States. One key aspect of the Regulation was to decentralize the enforcement of EU competition law – and the idea underpinning all four of the Decentralized Lunch Talks was to consider those aspects of the Regulation which were a success and those which were less successful from the perspective of National Competition Authorities (NCAs) and at the level of the national courts, and to compare those views across the EU. The feedback received will provide the grounds for a discussion at the GCLC Annual Conference which will take place in autumn 2014. The objective of the GCLC event held in Warsaw on 9 May was to offer the Polish perspective on the implementation of Regulation 1/2003, highlighting its strengths and pointing out areas for improvement. The event was hosted by Mr Adam Jasser, President of the OCCP and Mr Jörg Monar, Rector of the College of Europe. The panel speakers included representatives of the OCCP, Polish academia, legal practitioners and the European Commission.

During the debate, the participants discussed the functioning of the Regulation and of the European Competition Network (ECN) and praised the tools of cooperation made available for the ECN members. At the same time, legal practitioners called for more convergence in the Network with regard to procedural provisions. They pointed out that even though the substance of EU competition law is universal across the EU, there are significant differences in procedures and sanctions applied by NCAs. Such discrepancies

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pose a problem for the parties in antitrust proceedings and may endanger the effective protection of their rights of defence. The representative of the European Commission concurred with this view, underlining that the issue of harmonization of procedural provisions cannot be rushed, but it is one of the topics which the European Commission will tackle together with the NCAs in the context of the follow-on actions highlighted in the recently adopted Communication (see article in this Brief).

See press release (in Polish).

• Slovakia: Memorandum of Cooperation between Czech Office for the Protection of Competition and Antimonopoly Office of the Slovak Republic

On 16 April 2014, the Chairmen of the Antimonopoly Office of the Slovak Republic and the Office for the Protection of Competition of the Czech Republic signed a Memorandum of Cooperation. The Memorandum is the formal result of long-term cooperation based on good relations of a high standard between these two partner institutions. With their signatures, both Chairmen expressed their wish to develop and strengthen the existing good cooperation into the future.

The Memorandum creates a platform for broader cooperation regarding exchanges of information and experience in the field of legislation, case law, and methodology, but also information on market functioning, study visits, and organisation of conferences and other events.

Always with more effective enforcement of competition policy in mind, the Memorandum sets out rules for mutual supply of information in cases of anti-competitive behaviour by undertakings or mergers, as well as in cases of mutual assistance while maintaining the protection of sensitive information. Besides publicly available information, the competition authorities will also exchange other information upon the consent of the supplier of such information.

The parties to the Memorandum also expressed their interest in organising regular meetings between their representatives with the aim of discussing issues of mutual interest and cooperation.

See the Memorandum (in Slovak).

PERSONALIA

• Hungary: New Member appointed to Decision-making Body of GVHOn 1 June 2014, Mr János Áder, the President of the Hungarian Republic, appointed Dr Zoltán Bara as new member of the Competition Council of the Gazdasági Versenyhivatal (GVH - Hungarian Competition Authority). The appointments of the Members of the Competition Council are for a period of six years.The Competition Council is a separate and independent decision-making body within the GVH whose decisions are subject to judicial review. The investigator team carries out the procedure, and the decision on the substance of a case is adopted by the Competition Council proceedings in the case. The Competition Council also assesses the applications that are submitted for legal remedies against the so-called interim decisions adopted by the investigators during competition supervision proceedings.

The Members of the Competition Council also participate in the GVH’s competition advocacy tasks and contribute to disseminating competition culture in Hungary.

Dr Zoltán Bara graduated from Corvinus University of Budapest (CUB), where he has been a professor since his graduation in 2011.

He spent eight months in Chicago at DePaul University as a researcher in 1987-88, and lectured in economics in the Department of Economics at the Faculty of Arts and Sciences, Rutgers University, Camden

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from 1990-92. Then he taught as a guest lecturer at several universities. He worked at CUB as Head of Department and also in other countries as an expert on comparative economic systems. Between 2001 and 2007 he was a member of the GVH’s Competition Council. He then worked as a competition law-economics expert, while also developing and teaching courses related to competition law for economics students at Corvinus University of Budapest and also at Pannon University of Veszprém. In addition, he is a lecturer for the post-graduate competition law specialist course at Pázmány Péter Catholic University. In 2011 he returned to the GVH as the Head of the Competition Policy Section, and later he also worked as acting Chief Economist of the GVH. He has published more than one hundred studies, several of them on the topic of competition law. He speaks and publishes in English.

• Poland: Two new Vice-Presidents of the Office of Competition and Consumer Protection appointed

Prime Minister Donald Tusk has appointed Bernadeta Kasztelan-Świetlik and Dorota Karczewska to the position of Vice-President of the Office of Competition and Consumer Protection (OCCP) with effect from June 11, 2014.

Ms Bernadeta Kasztelan-Świetlik is an expert in competition law and returns to the Polish competition authority after having worked in the private sector for 15 years. Most recently, she was legal counsel at the law firm of Gessel, Koziorowski, serving corporate clients in competition cases. Previously she was director of the legal department at cable operator UPC Poland. She first joined the Polish competition authority at its creation in 1990 as part of the post-communist transition to a market economy. She was among the office’s top enforcers for nearly 10 years – serving first as Deputy Director of the branch office in Poznan and then as Director of the Department of Infrastructure at the head office in Warsaw. Ms Kasztelan-Świetlik will supervise the anti-monopoly division of the OCCP, including mergers and acquisitions.

Ms Dorota Karczewska is a lawyer specializing in competition and consumer protection issues. She has been working for the Office of Competition and Consumer Protection for the past 16 years – since 2008 as Director of the dynamic Bydgoszcz branch in Northern Poland. As legal counsel, she represented the Polish competition authority in numerous court cases. She teaches competition and consumer law at the Regional Chamber of Legal Counsel in Bydgoszcz. Since 2009 she has been a Supervisory Board Member of the Lodz Special Economic Zone. Ms Karczewska will take charge of the consumer protection division, including the trade and product safety inspection divisions.

Mr Adam Jasser, President of the Office of Competition and Consumer Protection, said on the occasion of the appointments: “I am delighted that Ms Kasztelan-Świetlik and Ms Karczewska will head our two core lines of operation. Their experience, drive and the respect they command among anti-trust practitioners will enhance our ability to protect the welfare of Polish consumers.”

‘Their recruitment will be crucial for implementing structural changes which we are making at the OCCP with the aim of putting consumers even more firmly at the centre of our focus, speeding up our response to abusive practices, boosting the role of economic analysis in our decision-making, and enshrining procedural fairness in anti-trust enforcement.’

See press release (in English).

ANNUAL REPORTS

• Slovakia: The Antimonopoly Office of Slovak Republic publishes its Annual Report 2013On 21 May 2014, the Antimonopoly Office of the Slovak Republic (the Office) published its Annual Report 2013 in which it summarises its activities and outputs in that year.

In 2013, the Office focused on uncovering the most harmful anti-competitive practices, i.e. horizontal

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cartels. It increased the number of unannounced inspections on the premises of undertakings with the aim of gathering relevant evidence to reveal the cartels and appropriately sanction them. Besides the activity on cartels, the annual report also summarises the Office’s activities in the area of abuse of dominant position, vertical agreements and other forms of anti-competitive practices, as well as statistical data. In 2013, the Office paid increased attention to analyzing potential competition issues in consumer-sensitive fields such as the heating sector, financial services and the food industry.

As regards legislation, the Office introduced an amendment to the Act on Protection of Competition. The Office intends to improve the business environment through a more flexible and client-oriented approach. Simultaneously, it introduced new elements into the Act which approximate Slovak competition law to European competition law (see also article in this ECN Brief 3/2014).

The year 2013 was also notable with regard to judicial review. The Supreme Court of the Slovak Republic upheld the Office’s decisions in four significant cases, in which both Slovak and European competition law had been infringed. The Office’s advocacy activity was another substantial part of the 2013 agenda: it actively participated in the inter-ministerial consultation procedure. The Office dealt with 555 contributions which were submitted to inter-ministerial consultation and submitted its comments on 34 submissions. The Office also regularly spread information on competition policy through the organization of various events.

See full version of the Annual Report 2013 (in Slovak and English).

TRAINING OF JUDGES

• European Commission: Deadline for Applications for 2014 Call on ‘Training of national judges in EU Competition Law and judicial cooperation’ is approaching

The Call and the Guide for applicants are available in all official languages. The deadline for applications is 29 August 2014. Projects are expected to start from January/February 2015.

Projects should address at least one of the following areas:

a) Improvement of knowledge, application and interpretation of EU competition law;

b) Support to National Judicial Institutions on Competition Law knowledge;

c) Improving and/or creating cooperation/networks;

d) Development of legal linguistic skills of national judges

The target audience is defined as ‘Judicial staff’:

a) Judges

b) Prosecutors

c) Judicial court staff

d) Bailiffs

e) Notaries

f) Mediators

For any questions, please contact COMP-TRAINING-JUDGES@ec.europa.eu.

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Info day in Croatia on 14 July 2014

A special Info day on the Training of Judges Programme was organised on 14 July 2014 on the premises of the Croatian National Competition Agency in Zagreb. The aim of the Info day was to provide information and suggestions on how to submit a good proposal and increase chances of getting funded. The event was attended by representatives of the Croatian Competition Agency, the Croatian Ministry of Justice and judges of the Croatian commercial courts. The documents and further information are available here.

Are you interested in having such event organised in your country? Do not hesitate to contact the Training of Judges Team at COMP-TRAINING-JUDGES@ec.europa.eu

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