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ARGENTINA

AUSTRALIA

AUSTRIA

BELGIUM

BRAZIL

CANADA

CHINA

DENMARK

EUROPEAN UNION

FRANCE

GERMANY

HUNGARY

INDONESIA

IRELAND

ISRAEL

ITALY

JAPAN

KOREA

MEXICO

NEPAL

NETHERLANDS

NEW ZEALAND

NORWAY

PERU

PORTUGAL

SERBIA

SOUTHEAST ASIA

SPAIN

SWEDEN

SWITZERLAND

TAIWAN

UKRAINE

UNITED KINGDOM

UNITED STATES

2011 ANTITRUST

YEAR IN REVIEW

Argentina

Australia

Austria

Belgium

Bosnia Herzegovina

Brazil

Cambodia/Laos/

Thailand/Vietnam

Canada

Chile

China

Colombia

Denmark

Ecuador

European Union

Finland

France

Germany

Greece

Hong Kong

Hungary

Ireland

Israel

India

Italy

Japan

Kosovo

South Korea

Macedonia

Malaysia

Mexico

The Netherlands

New Zealand

Norway

Peru

Poland

Portugal

Russia

Serbia

Singapore

Spain

Sweden

Switzerland

South Africa

Taiwan

Turkey

Ukraine

United Kingdom

United States Of America

Venezuela

International Antitrust Law Committee

e views and opinions expressed herein are those of the authors of each respective contribution.

e 2011 Year in Review is not, and should not be relied upon, as legal advice.

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2011 Antitrust Year in Review 1

MESSAGE FROM THE

COMMITTEE CHAIRS

e goal of the International Antitrust Law Committee is to publicize global developments in and provide a

forum for discussion and analysis of competition law. e Committee is comprised of members from around

the world, making up an international network of competition/antitrust practitioners and government ocials.

We take a leading role in policy development, frequently providing comments and input to assist competition

agencies and government ocials worldwide in the formulation and enforcement of their competition laws.

One of our Committee’s principal functions is to keep our Committee and Section members informed about

signicant international competition law developments. We do this through regular reports on our Committee

listserve, brown bags and teleconferences, presentations at the Section’s Spring and Fall meetings, and through

our new “Hot Topics” bulletins and Committee newsletter.

Another major component of our outreach eort is our annual analysis and summary of key antitrust

developments in jurisdictions around the world. We do this through two vehicles: the International Section’s

comprehensive “Year in Review” publication and through our committee’s own Year in Review Monograph, the

2011 edition of which you are now reading.

e “Year in Review” requires substantial time and eort on the part of the contributors and editors. We are

indebted to our 2011 editors. Sandy Walker (chief editor), Claire Webb (editor for Australia, New Zealand and

Asia), Matthew Hall (editor for the European Union countries) and Maria Cecilia Andrade (editor for Latin

America), and to all of the authors for their excellent contributions to this project.

Given the substantial lead time required to prepare this publication, we are already looking ahead to the 2012

edition. e 2011 Year in Review covers 52 jurisdictions. Our goal is to increase that level of participation even

further. We would encourage all those who might be interested in contributing to this publication to contact

us. You can also visit the International Antitrust Law Committee’s website at http://www.abanet.org for more

information about this and other of our activities.

Mark Katz David Schwartz

Davies Ward Philips & Vineberg LLP Wachtell, Lipton, Rosen & Katz

mkatz@dwpv.com [email protected]

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2 2011 Antitrust Year in Review

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2011 Antitrust Year in Review 3

EDITOR’S NOTE

is “Year in Review” is a compilation of the latest antitrust/competition law developments in 52 jurisdictions

worldwide. Each contribution oers commentary on signicant developments taking place across a number

of areas, including legislation, mergers, cartels and anticompetitive practices, abuses of dominant position and

court decisions.

is is the International Antitrust Law Committee’s 6th edition of “Year in Review” which debuted in 2006

with reports from 24 jurisdictions. Over the past few years the number of jurisdictions has grown each year and

for the rst time, we now have more than 50 jurisdictions, adding three more than last year.

e 2011 Year in Review is the culmination of countless hours of work on the part of our authors and our

editorial team including Matthew Hall (European Union), Maria Cecilia Andrade (Latin America), and Claire

Webb (Asia and Australia/New Zealand). We are extremely grateful for their dedication and commitment in

producing this volume – especially in the face of competing demands of revenue-generating work!

We also extend thanks to Lionel Tupman (editorial review), Sophy Wong-Lee (for her eorts to keep us

organized) and Fraser Milner Casgrain’s marketing department (for their patience with omissions and last

minute re-writes).

We hope this publication aords a valuable tool to understanding the growing role of antitrust/competition law

across the globe.

Sincerely,

Sandy Walker, Chief Editor

Matthew Hall

(European Union)

Partner,

McGuire Woods LLP

Brussels, Belgium

Sandy Walker

(Chief Editor)

Partner,

Fraser Milner Casgrain LLP

Toronto, Canada

Claire Webb

(Australia and Asia)

Senior Legal Counsel,

Qantas Airways Limited

Sydney, Australia

Maria Cecilia Andrade

(Latin America)

Partner,

Mattos Muriel Kestener Advogados

Säo Paolo, Brazil

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4 2011 Antitrust Year in Review

AUTHORS

ARGENTINA | Marval, O’Farrell & Mairal

Santiago Del Rio, Miguel Del Pino,

and Gabriel H. Lozano

AUSTRALIA | Minter Ellison

Paul Scho and Katrina Groshinski

AUSTRIA | Freshelds Bruckhaus Deringer LLP

Dr. Axel Reidlinger | bpv Hügel Rechtsanwälte

OG Dr. Heinrich Kühnert

BELGIUM

UGGC & Associés | Bruno Lebrun and

ibault Balthazar

BOSNIA AND HERZEGOVINA

Moravčević Vojnović Partneri oad in

cooperation with Schoenherr |

Srđana Petronijević and Danijel Stevanović

BRAZIL

Mattos Muriel Kestener Advogados |

Maria Cecilia Andrade and Adriana C. Rocha,

with the assistance of Paulo Renato L. Tirolli

CAMBODIA, LAOS, THAILAND

AND VIETNAM | DFDL Mekong

David Fruitman with the assistance of Sar Vathana

(Cambodia), Aristotle David and Vongphachanh

Onepaseuth (Laos), Nipaporn Supha-utchaichan

(ailand) and Nguyen Nhu Nguyet (Vietnam)

CANADA | Fraser Milner Casgrain LLP

Sandy Walker and Lionel Tupman

CHILE | Carey y Cía.Abogados

Lorena Pavic and Juan Enrique Coeymans

CHINA | Jones Day

Peter Wang and Yizhe Zhang

COLOMBIA | Gômez Pinzón Zuleta

Abogados

Mauricio Jaramillo and Natalia Franco Ocampo

DENMARK | Plesner

Gitte Holtsø, Louise Tandrup Christensen

and Asbjørn Godsk Fallesen

ECUADOR | DLL Law Oce

Santiago Reyes Mena

EUROPEAN UNION | Covington & Burling LLP

Michael Clancy and Laurie-Anne Grelier

FINLAND | Roschier Attorneys Ltd.

Ami Paanajärvi

FRANCE | Cleary Gottlieb Steen & Hamilton LLP

François Brunet and Eric Paroche

GERMANY | Latham & Watkins

Susanne Zuehlke and Dr. Jan Philipp Komossa

GREECE | Vgenopoulos and Partners

Stephanos Karaiskakis, Spyros Foulias

and Anthemis Economou

HONG KONG | Deacons

John Richardson

HUNGARY | KNP LAW Nagy Koppany

Varga and Partners

Dr. Kornelia Nagy-Koppany,

Dr. Annamaria Klara and Dr. Abigel Csurdi

IRELAND | McCann FitzGerald

Philip Andrews and Damian Collins

ISRAEL | Epstein, Chomsky, Osnat & Co.

Eytan Epstein, Tamar Dolev-Green

and Shiran Shabtai

INDIA | Amarchand & Mangaldas & Suresh

A. Shro & Co.

Pallavi S. Shro and Arshad (Paku) Khan

ITALY | Gianni, Origoni, Grippo, Cappelli

& Partners

Alberto Pera and Michele Carpagnano

JAPAN | Anderson Mori & Tomotsune

Shigeyoshi Ezaki, Vassili Moussis,

Kentaro Hirayama and Yuki Imai

SOUTH KOREA | Kim & Chang

Youngjin Jung, Gina Jeehyun Choi

and Maria Hajiyerou

KOSOVO | Moravčević Vojnović I Partneri in

cooperation with Schoenherr

Srđana Petronijević and Olga Šipka

MACEDONIA | Moravčević Vojnović i

Partneri (

Schoenherr

)

Srđana Petronijević and

Nataša Lalatović

MALAYSIA | Drew & Napier

Chong Kin Lim, Ee Kia Ng and Corrine Chia

MEXICO | SAI Consulatores, S.C.

Lucía Ojeda

THE NETHERLANDS | Freshelds

Bruckhaus Deringer LLP

Winfred Knibbeler and Nima Lorjé

NEW ZEALAND | Russell McVeagh

Andrew Peterson, Troy Pilkington

and Lucy George

NORWAY | Advokatrmaet Haavind AS

Anne Beate Saga Hammerstad,

Nina Melandsø and Trygve Norum

PERU | Bullard Falla Ezcurra +

Alfredo Bullard G. and Alejandro Falla J.

POLAND | Hansberry Competition

Dorothy Hansberry-Biegunska

PORTUGAL | Garrigues

João Paulo Teixeira de Matos

RUSSIA | ALRUD

Vassily Rudomino and German Zakharov

SERBIA | Moravčević Vojnović i Partneri

(

Schoenherr

)

Srđana Petronijević and Olga Šipka

SINGAPORE | Drew & Napier LLC

Lim Chong Kin, Ng Ee Kia and Corrine Chia

SOUTH AFRICA | Norton Rose South Africa

Heather Irvine and Christopher Kok

SPAIN | Garrigues

Susana Cabrera, Konstantin Jörgens

and Álvaro González

SWEDEN | Advokatrman Vinge KB

Johan Karlsson and Helena Höök

SWITZERLAND | CMS von Erlach Henrici Ltd.

Dr. Patrick Sommer, Stefan Brunnschweiler

and Amr Abdelaziz

TAIWAN | Jones Day

John C. Lin

TURKEY | Paksoy

M. Togan Turan and Deniz Özkan

UKRAINE | Vasil Kisil & Partners

Mariya Nizhnik and Oksana Franko

UNITED KINGDOM | McGuireWoods LLP

Matthew Hall

UNITED STATES OF AMERICA | Proskauer

Rose LLP

John R. Ingrassia and Alicia Batts

VENEZUELA | D’Empaire Reyna Abogados

José Humberto Frías and Manuel Casas

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2011 Antitrust Year in Review 5

INDEX

Argentina .......................................................................... 7

Australia ........................................................................... 11

Austria ..............................................................................15

Belgium ............................................................................ 19

Bosnia And Herzegovina ................................................. 25

Brazil ...............................................................................29

Cambodia/Laos/ailand/Vietnam ..................................33

Canada ............................................................................. 37

Chile ................................................................................ 41

China ............................................................................... 45

Colombia ......................................................................... 49

Denmark ..........................................................................51

Ecuador ............................................................................ 57

European Union ............................................................... 61

Finland ............................................................................. 65

France .............................................................................. 67

Germany .......................................................................... 69

Greece .............................................................................. 73

Hong Kong ...................................................................... 77

Hungary ........................................................................... 81

Ireland .............................................................................. 85

Israel ................................................................................89

India ................................................................................93

Italy ..................................................................................99

Japan ............................................................................. 103

South Korea ................................................................... 107

Kosovo .......................................................................... 111

Macedonia .....................................................................113

Malaysia ......................................................................... 117

Mexico ........................................................................... 121

e Netherlands ............................................................. 125

New Zealand .................................................................. 129

Norway .......................................................................... 135

Peru ................................................................................ 139

Poland ............................................................................ 143

Portugal .......................................................................... 147

Russia .............................................................................149

Serbia ............................................................................. 155

Singapore .......................................................................159

South Africa ................................................................... 163

Spain ..............................................................................167

Sweden ........................................................................... 173

Switzerland ..................................................................... 177

Taiwan ........................................................................... 181

Turkey ............................................................................ 183

Ukraine .......................................................................... 187

United Kingdom ............................................................ 191

United States Of America ...............................................199

Venezuela ....................................................................... 209

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6 2011 Antitrust Year in Review

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2011 Antitrust Year in Review 7

ARGENTINA

By Santiago Del Rio, Miguel Del Pino and Gabriel H. Lozano of Marval, O’Farrell & Mairal

LEGISLATIVE DEVELOPMENTS

Update on the Leniency Program

On December 15, 2010, the Antitrust Commission passed

Resolution No. 157 by which it submitted a draft bill to

amend the Antitrust Law in order to include a leniency

programme (the “Bill”) for consideration by the Secretary

of Domestic Trade. Once the Secretary of Domestic

Trade approves a bill, the bill is sent to Congress for nal

approval.

However, as the Argentine Presidential elections took place

this year, the Bill was not a political priority and as a result,

the Secretary of Domestic Trade did not approve the Bill

and it is unlikely such approval will be granted in 2012.

It should be noted that the amendment to the Antitrust

Law would incorporate leniency provisions and would result

in a more eective Antitrust Commission. It would enable

the agency to focus its attention and resources on anti-

competitive cases in a manner that is not currently possible.

e anticipated amendments to the Bill will constitute a

signicant change in the nature of Argentine competition

law for the regulator and businesses alike. Over the last

12 years merger control activity has been at the forefront

of the enforcement activity of the Antitrust Commission,

due to the conditions that the Antitrust Law sets out for

said procedure and the devaluation of currency.

Under the

proposed amendments, the Antitrust Commission would

have the tools, namely, rst hand information, in order to

bring its anti-competitive investigations and enforcement

into line with global standards.

Cooperation Agreement between Argentina and Brazil

On June 2011 the Antitrust Commission implemented the

“Cooperation Agreement between Argentina and the Federal

Republic of Brazil on cooperation between their Antitrust

1 Resolution No. 157 issued by the Antitrust Commission on December

15, 2010, available at www.mecon.gov.ar/cndc/archivos/anteproyecto_

de_ley.pdf.

2 Please note that when the Antitrust Law was issued, the currency

exchange in Argentina was of US$ 1 = ARS 1. However, on 2002

a devaluation took place in Argentina, which has led to a current

exchange rate of US$ 1 = ARS 4.30.

Authorities in the application of their antitrust laws” (the

“Cooperation Agreement”).

e purpose of the Cooperation Agreement is to promote

cooperation between enforcement authorities of both

countries in antitrust matters. is cooperation includes not

only the enforcement of antitrust laws but also technical

cooperation regarding the implementation of more ecient

enforcement procedures in both countries, including the

exchange of information and personnel. It also seeks to

ensure that the parties carefully consider their mutual

interest in the enforcement of their antitrust laws.

Each Party must notify the other of information relating

to enforcement activities (this covers all research, including

examining concentration acts as well as any other

proceeding brought by a Party). Enforcement activities

which must be notied are those which: (i) are relevant

to the activities of the other Party in the enforcement

of its laws; (ii) involve anticompetitive practices, other

than mergers or acquisitions, carried out in the whole or

in a substantial part of the territory of the other Party;

(iii) involve acts of concentration, in which one or more

of the involved parties or a company controlling one or

more parties to a transaction is a company incorporated or

organized under the laws of the other Party; (iv) involve

conduct allegedly researched, promoted or approved by

the other Party; and (v) involve the search for information

available in the territory of the other Party.

Within the framework of the Cooperation Agreement, the

Parties agreed on the exchange of information so that they a)

can facilitate the eective enforcement of the corresponding

antitrust laws; or b) may promote a proper understanding of

the economic and market conditions relevant to analyzing

the competitive impact of various activities.

e Cooperation Agreement demonstrates that the

Argentine Antitrust Commission and the Brazilian CADE

(Administrative Council of the Economic Defense) are

communicating. While Brazil’s competition regulation

is more advanced than Argentina’s, the agreement shows

Argentina’s interest in further developing its own antitrust

regime.

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8 2011 Antitrust Year in Review

MERGERS

Over the course of the year 2011, the Antitrust

Commission’s “stop the clock interpretation”, by means

of which it considers that its rst request of information

stops the term set out by Section 13 of the Antitrust Law

(which was intended to allow for a tacit approval system,

yet no tacit approvals have ever taken place ever since the

issuance of the Antitrust Law), has slowed down the speed

at which resolutions are issued, compared to previous

years. Currently, non-material transactions will remain

under consideration for a period of approximately 12 to 18

months.

e following are among the most relevant mergers that

were approved in the last year: Kraft/Cadbury, NOV/Stork,

Merck/Schering Plough and Agrium/AWB.

e Antitrust Commission has been very active in the

detection of transactions that have not been notied to the

authority. A recent example was the October 2011 approval

of the GlaxoSmithKline/ Stiefel Laboratories transaction.

e transaction was notied to the Antitrust Commission

in June 2010, and the Antitrust Commission assessed the

competitive eects of the transaction by analyzing the

relevant markets pursuant to the European Pharmaceutical

Market Research Association’s ATC3 classication.

e

relevant geographic markets were dened as national.

Although two overlapping markets were identied

in Argentina, the market shares shown in the docket

demonstrated that none of the overlaps was suciently

large as to pose harm to the general economic interest.

In addition, the antitrust agency analyzed the ancillary

restraints established by the parties in the transaction

documents, including a non-compete obligation assumed

by the shareholders of the target. e Antitrust Commission

expressed no concerns in this regard and it based its

conclusion mainly on the fact that the transaction involved

the transfer of intangible assets, business secrets and know-

how which justied the 3-year non-compete term.

3 Resolution No. 137 of the Secretary of Domestic Trade dated October

4, 2011 and Decision No. 902 of the Antitrust Commission dated

September 7, 2011.

4 The Anatomical Classiﬁcation of Pharmaceutical Products is

developed and maintained by the European Pharmaceutical Market

Research Association (EphMRA). EphMRA’s Classiﬁcation Committee

prepares the guidelines for this classiﬁcation system and takes care

for new entries, changes and improvements in consultation with the

product’s manufacturer.

Nevertheless, the Antitrust Commission reviewed the

transaction documents and the notication date, and

concluded that the parties had submitted the notication

ling 220 days after the required date. As a result, the

Antitrust Commission imposed a late-ling ne of ARS

1,760,000 (approximately US$410,000) on each of the

companies involved.

CARTELS AND OTHER ANTICOMPETITIVE PRACTICES

During 2011 no major cartel activity was detected in

Argentina. On June 17, 2010 the Antitrust Commission

imposed a ne of ARS 2,500,000 on each of the two major

cable TV companies in Argentina, namely Cablevisión

S.A. and Multicanal S.A.

e investigation was initiated

on August 12, 1998, pursuant to a complaint led before

the Antitrust Commission by an organization that carries

out consumer action initiatives (acción del consumidor,

‘ADELCO’), an association which aims to protect the rights

and interests of consumers.

e Antitrust Commission focused its attention on

preventing anticompetitive practices by issuing several

preventive orders within the terms of Section 35 of the

Antitrust Law. On August 18, 2011, the Secretary of

Domestic Trade issued a preventive order within the pay TV

market and ordered Fox Sports Latin America S.A. to refrain

from engaging in certain conduct that may cause harm to

the pay TV consumers.

Some months earlier, on June 10, 2011 the Antitrust

Commission issued a preventive order which entailed the

monitoring of the competitive conditions of the media

delivery market.

e decision compelled the entity in

charge of the newspaper and magazine distribution called

“Sociedad de Distribuidores de Diarios, Revistas y Anes”

to grant a certain editor (Editorial Sarmiento) with non-

discriminatory market conditions, allowing said editor to

oer its products by means of the network of the “Sociedad

de Distribuidores de Diarios, Revistas y Anes”.

It is noteworthy that the issuance of preventive orders by

the Antitrust Commission has been successfully challenged

in court, since there have been precedents in which these

5 Resolution No. 219 of the Secretary of Domestic Trade dated June 17,

2010 and Decision No. 618 of the Antitrust Commission dated June

15, 2010.

6 Decision issued by the Antitrust Commission on August 17, 2011.

7 Decision issued by the Antitrust Commission on June 10, 2011.

DEVELOPMENTS IN ARGENTINA

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2011 Antitrust Year in Review 9

preventive orders have been overturned, such as the Papel

Prensa case which is detailed in the following Section.

COURT CASES

On July 14, 2011 Room “A” of the Court of Appeals on

Economic Criminal Matters issued a resolution by means of

which it annulled a decision of the Antitrust Commission

issued within the terms of Section 35 of the Antitrust Law.

e resolution was issued in a case that involved the

company Papel Prensa S.A. and set out that the antitrust

regulations did not empower the Antitrust Commission

to issue this type of preventive orders, and therefore, the

Court annulled the decision. is is not the rst case in

which the Court has made such a decision. In 2010, the

Antitrust Commission imposed the same restriction in

the Telecom case. Regarding non-compete provisions, it is

worth noting that the Federal Court of Appeals on Civil and

Commercial Matters issued a sentence by which it held that

a non-compete provision for the entirety of an 8-year Joint

Venture, as well as for six months afterwards could not be

challenged by the Antitrust Commission.

Marval, O'Farrell & Mairal

www.marval.com.ar

Av. Leandro N. Alem 928 (C1001AAR) - Buenos Aires . Argentina

T: (54-11) 4310-0100 ext. 1787

F: (54-11) 4310-0200

8 Sentence issued on July 14, 2011 in proceedings “Papel Prensa s/

Incidente de Apelación”.

9 Sentence issued on July 14, 2011 in proceedings “Vulcabras S.A. y

otros/ Apl. Resol. Comisión Nacional Defensa de la Competencia”.

DEVELOPMENTS IN ARGENTINA

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2011 Antitrust Year in Review 11

AUSTRALIA

By Paul Schoff and Katrina Groshinski of the Sydney ofﬁce of Minter Ellison

LEGISLATIVE DEVELOPMENTS

On January 1, 2011, Australia’s Trade Practices Act 1974

(Cth) was renamed the Competition and Consumer Act

2010 (Cth) (“CCA”). Although the name of the legislation

has changed, the substantive anti-competitive conduct

provisions of the legislation remain the same. e Australian

Competition and Consumer Commission (“ACCC”) also

welcomed a new Chairman, Rod Sims, who was appointed

in August 2011 for a ve year term.

In November 2011, the Competition and Consumer

Amendment Act (No. 1) 2011 (Cth) was passed. e Act,

will apply from June 6, 2012. It was passed amidst signicant

debate in Australia over whether the anti-competitive

conduct prohibitions under the CCA are adequate to regulate

anti-competitive price signalling (or ‘price facilitation’,

‘tacit collusion’, or ‘co-ordinated conduct’), particularly

in the banking sector. e Act prohibits anti-competitive

disclosures of pricing and other information in relation to

goods or services within a prescribed class (as prescribed by

the Regulations). A corporation will contravene the price

signaling prohibitions where: 

• there is aprivate disclosure to competitors, and the

information relates to a price, discount, allowance,

rebate or credit in relation to a prescribed class of goods

or services which are supplied or acquired (or likely

to be supplied or acquired) by the disclosing party

(other than disclosures made in the ordinary course of

business). A ‘private disclosure to competitors’ occurs

if the disclosure is to one or more competitors or

potential competitors of the corporation in the market,

and is not to any other person; or

• there is any disclosure (private or public) of information

relating to price, discounts, allowances, rebates or credits

in relation to goods or services within a prescribed

class, or thecapacity to supply or acquire or commercial

strategy in relation tothose goods or services, where

that disclosure has thepurpose of substantially lessening

competition. e relevant purpose may be ascertained by

inference from conduct or other relevant circumstances.

A breach of the price signaling prohibitions will attract

(civil) pecuniary penalties of up to the greater of AUD$10

million (approximately US$10.4 million), three times

the value of the benet gained, or ten per cent of group’s

annual turnover.

On December 23, 2011, the Treasury released an exposure

draft of theCompetition & Consumer Amendment

Regulations 2012.

e draft regulations prescribe the goods

and services to which the price signalling prohibitions under

Part IV of theCompetition and Consumer Act 2010will

apply from June 6, 2012. e draft regulations conne the

initial application of the price signalling prohibitions to the

deposit taking and advance activities of authorised deposit

taking institutions. ey also set out the process by which

the Minister may determine which additional goods or

services (i.e., beyond the banking sector) should be made

subject to the prohibitions.

In addition to the price signaling prohibitions, the Act

replaces the reference to ‘a market’ with ‘any market’ in

section 50 of the CCA, and removes the term ‘substantial’

from section 50 so that it will apply to all national, state or

regional markets.

e amendments have been proposed

to address theoretical ambiguities in the ability of section

50 to regulate ‘creeping acquisitions,’

but the changes

largely reect prevailing practice under the ACCC’s Merger

Clearance Guidelines.

MERGERS

On December 8, 2010, the ACCC brought proceedings

against Metcash Trading Limited (“Metcash”) (a wholesale

1 See http://www.treasury.gov.au/contentitem.

asp?NavId=037&ContentID=2284.

2 Section 50 of the CCA currently prohibits corporations and/or persons

from directly or indirectly acquiring shares in the capital of a body

corporate or acquiring any assets of a person if the acquisition

would have the effect, or be likely to have the effect, of substantially

lessening competition in a market.

3 A creeping acquisition generally describes conduct that comprises

the accumulated effect of a number of small individual transactions

which, when considered in isolation at the time that each transaction

occurred, would not breach section 50 of the CCA, but when

combined, could be considered to have an adverse effect on

competition.

4 Available at: http://www.accc.gov.au/content/item.phtml?itemId=80

9866&nodeId=7cfe08f3df2fe6090df7b6239c47d063&fn=Merger%20

guidelines%202008.pdf.

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12 2011 Antitrust Year in Review

and distribution company that supplies grocery products

to independent supermarkets in Australia) and South

African retailer Pick n Pay Retailers (Pty) Ltd (“Pick n

Pay”) to restrain Metcash from acquiring all of the issued

shares in the capital of Interfrank Group Holdings Pty Ltd

(“Franklins”) e ACCC claimed the proposed acquisition

would substantially lessen competition in breach of

Australia’s merger laws because it would result in Metcash

having signicantly greater unilateral power. On August 25,

2011, the Federal Court dismissed the ACCC’s application.

e ACCC appealed to the Full Court of the Federal Court,

which upheld the Federal Court’s decision in December

2011.

e Full Court addressed the appropriate standard of

proof necessary to establish the counterfactual in a merger

analysis. e ACCC has announced that it will not be

appealing this decision.

In 2010, the ACCC announced that it would focus

on mergers that directly aected “the hip pockets” of

consumers. It appeared to be taking a tough stance

on mergers, particularly after it publicly opposed ve

mergers. is trend did not continue in 2011. Rather than

opposing proposed mergers outright, the ACCC appears

willing to accept court enforceable undertakings from

potential purchasers where the proposed acquisition raises

competition concerns. e undertakings usually require the

divesture of certain assets.

For example, in March 2011, the ACCC announced that it

would oppose Asahi Holdings (Australia) Pty Ltd’s (“Asahi”)

proposed acquisition of P&N Beverages Australia Pty Ltd

(“P&N”). Asahi owns Schweppes Australia Pty Ltd, the

second largest manufacturer of carbonated soft drinks in

Australia, and the largest manufacturer of cordial. P&N was

the third largest manufacturer of both carbonated soft drinks

and cordial, and the ACCC was concerned the acquisition

would remove a vigorous and eective competitor in those

markets. Asahi provided court enforceable undertakings

to the ACCC to divest certain assets of P&N (including

manufacturing facilities, production equipment, brands,

5 Australian Competition and Consumer Commission v Metcash Trading

Limited [2011] FCA 967, available at http://www.austlii.edu.au/au/

cases/cth/FCA/2011/967.txt/cgi-bin/download.cgi/download/au/

cases/cth/FCA/2011/967.rtf.

6 Australian Competition and Consumer Commission v Metcash Trading

Limited [2011] FCAFC 151, available at http://www.austlii.edu.au/au/

cases/cth/FCAFC/2011/151.html.

7 See http://www.accc.gov.au/content/index.phtml/itemId/1020658/

fromItemId/142.

personnel and intellectual property rights) to a newly created

and separate company. Asahi also undertook to transfer

certain production lines from its Schweppes business to the

new company, as well as provide interim contract packing

services to it.

In June 2011, the ACCC announced that it would not

oppose a proposed acquisition of Bledisloe Group Holdings

Pty Ltd (“Bledisloe”) by InvoCare Limited (“Invocare”)

after Invocare oered court enforceable undertakings to

the ACCC. Bledisloe and Invocare competed in the funeral

directing markets in Brisbane and Sydney and also competed

to provide cremation services in Brisbane. e undertakings

required InvoCare to sell a funeral business in north Sydney

and a crematorium in north Brisbane. It was also required to

distinguish between the Invocare and Bledisloe brands when

advertising in the Brisbane area. e ACCC considered the

undertakings would remove Invocare’s ability and incentive

to increase the price for funeral services in north Sydney and

cremation services in north Brisbane.

CARTELS AND OTHER ANTICOMPETITIVE PRACTICES

Since late 2009, the ACCC has continued to pursue

proceedings against airlines for alleged involvement in

price xing in relation to fuel surcharges applying to the

international carriage of air cargo. e ACCC has brought

a total of 15 proceedings against airlines. Eight of those

proceedings have settled, resulting in penalties totalling

AUD$46 million (approximately US$48 million).

Japan

Airlines International Co., Ltd was the most recent carrier to

settle, paying a penalty of AUD$5.5 million (approximately

US$5.7 million). Proceedings continue against Singapore

Airlines Cargo Pte Ltd, Cathay Pacic Airways Ltd,

Emirates, PT Garuda Indonesia Ltd, ai Airways

International Public Company Limited, Air New Zealand

8 See http://www.accc.gov.au/content/index.phtml/itemId/1002254/

fromItemId/2332.

9 See http://www.accc.gov.au/content/index.phtml/itemId/991834.

10 Penalties have been imposed on Japan Airlines International Co., Ltd ,

Société Air France, Koninklijke Luchtvaart Maatschappij NV, Martinair

Holland NV, Qantas and British Airways.

DEVELOPMENTS IN AUSTRALIA

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2011 Antitrust Year in Review 13

Ltd, Malaysian Airline System Berhad, and its wholly-

owned cargo subsidiary Malaysia Airlines Cargo Sdn Bhd.

In November 2011, the Federal Court imposed penalties

against three construction companies (JM Kelly (Project

Builders) Pty Ltd, TF Woollam & Son Pty Ltd and

Carhmichael Builders Pty Ltd) for price xing conduct

including cover pricing.

Cover-pricing involves two

companies (usually in the construction industry) that both

intend to bid for a particular tender but one company

does not want to win. e company that does not want

to win the tender (Company A) will contact the other

company (Company B) and obtain Company B’s tender

price. Company A will submit a ‘cover price’ which both

companies understand will be higher than Company B’s

tender price. e court found that this was cartel conduct

as it was conduct amounting to the control of the price

by putting a ceiling and oor on the price at which the

companies would tender.

In February 2011 penalties of AUD$4.2 million

(approximately US$4.4 million) were imposed on

Singapore-based Asia Pulp & Paper Co Ltd and a related

11 In December 2008, the ACCC commenced proceedings against

Singapore Airlines Cargo Pte Ltd. See ACCC News Release available

at http://www.accc.gov.au/content/index.phtml/itemId/854765. In April

2009, the ACCC commenced proceedings against Cathay Paciﬁc

Airways Ltd. See ACCC News Release available at http://www.accc.

gov.au/content/index.phtml/itemId/870718/fromItemId/621556. In

August 2009, the ACCC commenced proceedings against Emirates.

See ACCC News Release available at

http://www.accc.gov.au/content/index.phtml/itemId/888604/

fromItemId/621556. In September 2009, the ACCC commenced

proceedings against PT Garuda Indonesia Ltd. See ACCC Media

Release available at http://www.accc.gov.au/content/index.phtml/

itemId/891294/fromItemId/621556. In October 2009, the ACCC

commenced proceedings against Thai Airways International Public

Company Limited. See ACCC Media Release available at http://www.

accc.gov.au/content/index.phtml/itemId/899383/fromItemId/142.

In March 2010, the ACCC brought proceedings against Korean Air

Lines Co. Ltd. See ACCC Media Release available at http://www.

accc.gov.au/content/index.phtml/itemId/917336. In April 2010, the

ACCC brought proceedings against Malaysian Airline System Berhad

and its wholly-owned cargo subsidiary Malaysia Airlines Cargo Sdn

Bhd. See ACCC Media Release available at http://www.accc.gov.au/

content/index.phtml/itemId/923374. In May 2010, the ACCC brought

proceedings against Japan Airlines International Co., Ltd and Air New

Zealand Ltd. See ACCC Media Releases available at http://www.accc.

gov.au/content/index.phtml/itemId/928666 and http://www.accc.gov.

au/content/index.phtml/itemId/928664.

12 Australian Competition and Consumer Commission v TF Woollam &

Son Pty Ltd [2011] FCA 973 available at http://www.austlii.edu.au/

au/cases/cth/FCA/2011/973.txt/cgi-bin/download.cgi/download/au/

cases/cth/FCA/2011/973.rtf.

13 See http://www.accc.gov.au/content/index.phtml/itemId/1004424/

fromItemId/2332.

Indonesian company, PT Indah Kiat Pulp and Paper Tbk,

for xing the price of photocopy and folio paper that was

supplied to Australian customers.

In its press release, the

ACCC noted that this case sends a strong message to foreign

companies that engage in cartel conduct that causes harm to

Australian consumers.

ABUSES OF A DOMINANT POSITION

Rod Sims, the new chairman for the ACCC, has indicated

that the ACCC will be closely monitoring rms (including

in the supermarket, telecommunication and airport sectors),

that have signicant market power. In a speech, Mr Sims

stated: “e ACCC now believes that it is time to resolve

the unanswered questions surrounding section 46. Recent

amendments to the Act and likely future court actions

are providing guidance on how to successfully prosecute

companies that misuse their market power.”

e ACCC under Rod Sims has not yet commenced any

proceedings for breaches of the misuse of market power

prohibition in the CCA however it seems likely that it will

do so in the not too distant future.

Minter Ellison

www.minterellison.com

Aurora Place, 88 Phillip Street Sydney New South Wales, 2000

Australia

+61 2 9921 8888

+61 2 9921 8123

14 Australian Competition and Consumer Commission v April

International Marketing Services Australia Pty Ltd (No 8) [2011] FCA

153 available at http://www.austlii.edu.au/au/cases/cth/FCA/2011/153.

txt/cgi-bin/download.cgi/download/au/cases/cth/FCA/2011/153.rtf.

15 See http://www.accc.gov.au/content/index.phtml/itemId/975295.

16 “Some compliance and enforcement issues”, Law Institute of Victoria

Breakfast Series 25 October 2011, Melbourne, speech of Rod Sims,

Chairman, ACCC available at http://www.accc.gov.au/content/item.pht

ml?itemId=1014098&nodeId=19e390ff37e28f4162412d52635be1a4&fn

=Some%20compliance%20and%20enforcement%20issues.pdf.

DEVELOPMENTS IN AUSTRALIA

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14 2011 Antitrust Year in Review

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AUSTRIA

By Dr. Axel Reidlinger of Freshﬁelds Bruckhaus Deringer LLP and Dr. Heinrich Kühnert

of bpv Hügel Rechtsanwälte OG

LEGISLATIVE DEVELOPMENTS

Amendments to the Austrian Criminal Procedure Code

entered into force on January 1, 2011. ese include

new criminal law leniency provisions, which apply to

competition law infringements so far as they constitute

criminal violations (such as bid-rigging). Specically,

individuals aliated with an undertaking which has applied

for leniency for itself with the Austrian Federal Competition

Authority, the European Commission or a national

competition authority of another EU Member State will

not be prosecuted in Austria if certain conditions are met.

In addition, individuals can directly apply for leniency for

themselves in cases where their personal conduct amounted

to a criminal oence but was at the same time part of a

competition law infringement by the company they acted

for. At the time of writing no individual whistleblower case

of the latter type had become public.

e Austrian Government started a discussion process

and set up a working group in early 2011 with a view to

amending Austrian competition law. is may result in

various changes to the current regime, including in relation

to (i) the denition of a merger, (ii) increased transparency

of Cartel Court decisions (currently there is no standard

publication regime), (iii) the criteria for setting nes,

(iv) procedural rights, and (v) the abuse of dominance

prohibition.

Another potential legislative development concerns

provisions under the Austrian Cartel Act which restrict

the inspection, without consent from the parties, of Cartel

Court les by third parties such as potential private damages

claimants. e Cartel Court has referred a case to the Court

of Justice of the European Union (the “ECJ”) seeking

guidance on a damage claimant’s application to inspect the

Cartel Court’s le on a print chemicals cartel, including

some leniency documents.

e case follows the ECJ’s

landmark Peiderer judgment earlier in 2011, in which

the ECJ ruled on whether damage claimants could gain

access to documents submitted by cartel whistleblowers and

1 Case C-536/11, Donau Chemie and others, and Austrian Cartel Court

Case 29 Kt 5/09.

essentially required a balancing act to be carried out by the

national court. Under the Cartel Act, if the parties do not

give their consent, then not even exceptional circumstances

can warrant the disclosure of cartel les. e Cartel Court

has asked whether this is in accordance with EU law, since

the court is unable to balance the interests of both sides. e

ruling by the ECJ is not expected before 2013.

MERGERS

e number of merger lings notied to the Austrian

Federal Competition Authority (the “FCA”) remained

low in 2011 compared with pre-nancial crisis levels, with

280 notications received. By the end of 2011, 10 cases

had been referred to the Cartel Court for a phase two

investigation, while a further two cases had been cleared in

phase one subject to remedies entered into by the notifying

parties. e mergers subjected to a detailed assessment

covered a wide range of sectors, with the press sector leading

the way with three phase two references. Press mergers

traditionally are subject to heightened scrutiny in Austria, as

the regulators not only assess their impact on competition,

but in addition review their eect on media diversity.

Of the cases referred to the Cartel Court during 2011,

one was cleared unconditionally and three were cleared

subject to remedies. Two applications were withdrawn by

the notifying parties. Interestingly, a further two cases were

rejected by the Cartel Court on the basis that they did

not constitute notiable transactions. One of these cases

concerned the creation of an international purchasing joint

venture by mobile network operators T-Mobile and Orange.

While this joint venture was not subject to review by the

European Commission under the EU Merger Regulation

(the “EUMR”), the parties decided to le in a number of

countries which dene notiable transactions more broadly

than does the EUMR, including in Austria. Notably,

Austrian law diers from EU law in that the combination

of existing activities in a new joint venture is not subject

to the full-functionality requirement; rather, it is sucient

for the resulting entity to qualify as an undertaking

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16 2011 Antitrust Year in Review

under competition law. e exact consequences of this

rather subtle distinction are however dicult to gauge.

In particular, for an entity to qualify as an undertaking,

Austrian case law appears to require a presence on a

sales market, which is in line with the full-functionality

requirement at EU level. By contrast, the joint venture

between T-Mobile and Orange was restricted to purchasing

activities. Regrettably, the status of purchasing joint ventures

under Austrian law remains unclear, as the Cartel Court’s

reasoning dismissing the T-Mobile/Orange case had not at

the time of writing been made public.

On the procedural side, 2011 saw a (rare) decision by the

Supreme Court concerning nes for failure to notify. e

case involved the 2007 acquisition, by a large German

corporation, of a 50% share in a Hungarian transport

company with very limited turnover in Austria. Upon

application by the FCA, the Cartel Court had imposed a

symbolic ne of €4,500 (approximately US$6,000), arguing

inter alia that the notiability of the case had not been

clear and that the transaction had had no negative eect on

competition in Austria. e FCA appealed and requested a

ne of almost €5 million (approximately US$6.7 million)

to be imposed. e Supreme Court remanded the case to

the Cartel Court, arguing that the ndings of fact at rst

instance were insucient to determine the acquirer’s fault.

Interestingly, the Supreme Court held that the acquirer

may escape a ne altogether, provided that the failure to

notify was based on incorrect advice by specialized antitrust

counsel, if the advice was rendered in full knowledge of the

facts and based on comprehensive instructions.

CARTELS AND OTHER ANTICOMPETITIVE PRACTICES

Similar questions of fault have arisen in the Austrian freight

forwarding case. In this case, the FCA alleged that the

(more than 40) members of the Austrian freight forwarders’

groupage freight association had violated competition law

by establishing a joint pricing system for groupage freight

in Austria, sharing customers, exchanging condential

information, and coordinating prices with rail freight

forwarders. In its decision at rst instance, the Cartel Court

refused to impose a ne, arguing that the members of the

2 The case summary is available in German at http://www.bwb.gv.at/

Zusammenschluesse/

Zusammenschluesse_2011/Seiten/BWB_Z-1506.aspx.

3 Supreme Court Decision 16 Ok 2/11.

association could legitimately assume that their conduct was

legal, based in particular on a 1995 declaratory decision in

which the Cartel Court had held that the association’s rules

benetted from the de minimis exception under Austrian

law.

On appeal by the FCA, the Supreme Court decided

to refer a number of questions to the ECJ. In particular,

the Supreme Court has asked the ECJ to rule whether an

undertaking could escape nes if its violation of European

competition law was based on an excusable error of law,

notably if it relied on a decision under national competition

law or on advice received from experienced legal counsel.

Interestingly, the Supreme Court’s referral decision explicitly

voices doubts as to whether the ECJ’s old, restrictive case

law on these issues is still applicable, arguing that the

abolition, in 2004, of the notication system for restrictive

agreements may require a broader construction of the

concept of excusable error (as undertakings may no longer

receive comfort by consulting the competition authority

upfront).

e case is currently pending before the ECJ.

In two noteworthy judgments in late 2011 in the aftermath

of a series of FCA dawn raids in the summer of 2011 in

various cases (which had as required been authorized by

the Cartel Court), the Supreme Court claried both the

requirements of, and the FCA’s powers of investigation

during, dawn raids under Austrian law. In particular, the

Court held that there is no “hierarchy” of investigation

instruments (i.e. that a dawn raid could be allowed even if

there were potentially less intrusive methods available to the

FCA to obtain the desired information, such as a request

for information) and that the FCA does not have the power

to seize documents, but is restricted to making copies. is

latter nding however is unlikely to signicantly curtail the

FCA’s investigative powers in practice, as the Supreme Court

held at the same time that the copying of electronic data

storage devices did not amount to a seizure and was covered

by the FCA’s powers of investigation.

4 The Federal Competition Authority case summary is

available in German at http://www.bwb.gv.at/Aktuell/Seiten/

PreiskartellimSpeditionsbereich.aspx.

5 Supreme Court Decision 16 Ok 4/11.

6 Supreme Court Decisions 16 Ok 5/11 and 16 Ok 7/11.

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2011 Antitrust Year in Review 17

ABUSES OF A DOMINANT POSITION

e Cartel Court, in a decision of May 9, 2011

, accepted

commitments from Constantin Filmverleih (a lm distributor

which also runs a number of large cinemas in Austria)

regarding its procedure for oering lm copies to cinemas.

On the basis of these commitments, any cinema operator

will be entitled to receive copies of new lms distributed by

Constantin, so that Constantin will no longer have discretion

in this regard. e commitments will be valid for two years.

is is the latest in a series of disputes concerning distribution

of lm copies by Constantin, with the cases clarifying “refusal

to deal” issues under the Austrian dominance rules.

e Austrian Supreme Court, in a decision of February 28,

2011

, decided to refer a private competition litigation case

to the ECJ for a preliminary ruling on the question whether

the Republic of Austria acts as an undertaking, within the

meaning of competition law, in maintaining the public

company register in Austria. Compass, a private company,

oers its customers enhanced business data through a

database that it updates on a daily basis, including by using

data from the company register. For these updates it must,

according to the Republic of Austria’s general terms of use,

always buy and pay for the complete set of data rather than

just daily updates. Furthermore, the Republic of Austria

limits the use of the data and prohibits any commercial

on-sale. In turn, Compass alleges that such prohibition by

the Republic of Austria amounts to an abuse of a dominant

position and that Compass should be entitled to purchase

updates only on a daily basis at reasonable prices. e

Republic argues that it does not act as an undertaking in

maintaining the register and that this governmental activity

should therefore not be subject to competition law.

Giving judgment at rst instance, the Cartel Court had

rejected the application. Compass appealed to the Supreme

Court, whose referral to the ECJ also asks for guidance on

whether, in the event the Republic of Austria is considered

to be an undertaking for this purpose, the “essential facility”

rules established by ECJ case law applies to the relevant

data, on the basis that Compass could not operate its

business without it.

7 Cartel Court Case 26 Kt 2/08. The Federal Competition Authority case

summary is available in German at http://www.bwb.gv.at/Aktuell/

Seiten/VergabevonFilmkopienanKinos.aspx.

8 Supreme Court Decisions 4 Ob 214/97t, 4 Ob 114/00v, 16 Ok 20/04,

16 Ok 6/08.

9 Case 16 Ok 4/10.

COURT DECISIONS

Since February 2010, various elevator customers (including

municipalities such as the City of Vienna and state

companies such as Austrian Railways) have led damages

claims against major elevator companies at the Vienna

Commercial Court. e claims relate to the Austrian

elevators cartel for which three manufacturers were ned a

total of €75.4 million (approximately US$101 million) by

the Cartel Court in December 2007.

ese proceedings are the rst large competition damage

litigation cases in Austria. e initial expectation that many

substantive as well as procedural legal issues will have to be

claried by the court has been conrmed by the proceedings

so far. ese issues include application of the rules on statute

of limitations (specically, what event starts the limitation

period running), the burden of proof for certain relevant

facts, and the assessment of damages by the court (including

the validity of the passing-on defence).

Most of the proceedings remain in the early stages.

However, in the highest value cases the judges are

reported to have singled out certain legal issues for interim

judgments, including the triggering event, passing-on, and

the appropriate analysis where the plainti was not the

customer when an elevator was purchased but only acquired

the building with the elevator later on.

A major issue in all proceedings is the extent to which

plaintis must prove that their elevators were aected by the

(bid-rigging) cartel. e plaintis tried to avoid this issue

by claiming that the cartel led to an overall price increase in

the market, so that their prices were inated regardless of

whether a certain elevator or escalator was the object of bid-

rigging. e courts have so far shown little sympathy for this

approach and have ordered the plaintis to submit precise

data for each and every elevator or escalator for which they

claim damages.

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18 2011 Antitrust Year in Review

In one case the applicant (Uniqa, an insurance company)

did not submit such data on time and the court therefore

dismissed its claim. e court stated that the applicant

had even failed to specify the prices paid for the elevators

covered by its claim. Without this, the applicant could not

specify the damage that it had suered. is judgment has

been appealed.

Freshﬁelds Bruckhaus Deringer

Seilergasse 16

1010 Vienna

Austria

T: +43 1 515 15 0

F: +43 1 512 63 94

For Dr. Heinrich Kuhnert:

bpv Hügel Rechtsanwälte OG

ARES-Tower, Donau-City-Str. 11, A - 1220 Vienna

Tel. (+43-1) 2 60 50-0, Fax. (+43-1) 2 60 50-133

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Electrolux C 67100 K Datasheet

Brand: Electrolux

Model: C 67100 K

Category: Hobs

Type: Datasheet

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Electrolux C 67100 K Datasheet

Electrolux C 67100 K Datasheet

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