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.
Copyright © 2011 American Bar Association. Allrights reserved.
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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 ocials.
We take a leading role in policy development, frequently providing comments and input to assist competition
agencies and government ocials 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
signicant 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 eort 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 eort 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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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 oers commentary on signicant 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 eorts 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 aords 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 | Freshelds 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 Oce
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 | Freshelds
Bruckhaus Deringer LLP
Winfred Knibbeler and Nima Lorjé
NEW ZEALAND | Russell McVeagh
Andrew Peterson, Troy Pilkington
and Lucy George
NORWAY | Advokatrmaet 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 | Advokatrman 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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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.
1
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 eective 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
signicant 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.
2
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 ecient
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 notied 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 eective 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 notied to the
authority. A recent example was the October 2011 approval
of the GlaxoSmithKline/ Stiefel Laboratories transaction.
3
e transaction was notied to the Antitrust Commission
in June 2010, and the Antitrust Commission assessed the
competitive eects of the transaction by analyzing the
relevant markets pursuant to the European Pharmaceutical
Market Research Association’s ATC3 classication.
4
e
relevant geographic markets were dened as national.
Although two overlapping markets were identied
in Argentina, the market shares shown in the docket
demonstrated that none of the overlaps was suciently
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 justied 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 notication date, and
concluded that the parties had submitted the notication
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.
5
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.
6
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.
7
e decision compelled the entity in
charge of the newspaper and magazine distribution called
“Sociedad de Distribuidores de Diarios, Revistas y Anes”
to grant a certain editor (Editorial Sarmiento) with non-
discriminatory market conditions, allowing said editor to
oer its products by means of the network of the “Sociedad
de Distribuidores de Diarios, Revistas y Anes”.
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.
8
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.
9
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 signicant
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 aprivate 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 thecapacity to supply or acquire or commercial
strategy in relation tothose goods or services, where
that disclosure has thepurpose 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 benet gained, or ten per cent of group’s
annual turnover.
On December 23, 2011, the Treasury released an exposure
draft of theCompetition & Consumer Amendment
Regulations 2012.
1
e draft regulations prescribe the goods
and services to which the price signalling prohibitions under
Part IV of theCompetition and Consumer Act 2010will
apply from June 6, 2012. e draft regulations conne 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.
2
e amendments have been proposed
to address theoretical ambiguities in the ability of section
50 to regulate ‘creeping acquisitions,’
3
but the changes
largely reect prevailing practice under the ACCC’s Merger
Clearance Guidelines.
4
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 signicantly greater unilateral power. On August 25,
2011, the Federal Court dismissed the ACCC’s application.
5
e ACCC appealed to the Full Court of the Federal Court,
which upheld the Federal Court’s decision in December
2011.
6
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.
7
In 2010, the ACCC announced that it would focus
on mergers that directly aected “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 eective 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.
8
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 oered 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.
9
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).
10
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 Pacic 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.
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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.
11
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.
12
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.
13
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.
14
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.
15
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 signicant 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.”
16
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.
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2011 Antitrust Year in Review 15
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). Specically,
individuals aliated 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 oence 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 denition 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.
1
e case follows the ECJ’s
landmark Peiderer 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 notied to the Austrian
Federal Competition Authority (the “FCA”) remained
low in 2011 compared with pre-nancial crisis levels, with
280 notications 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 eect 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 notiable 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 dene notiable transactions more broadly
than does the EUMR, including in Austria. Notably,
Austrian law diers 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 sucient
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 dicult 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.
2
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 notiability of the case had not been
clear and that the transaction had had no negative eect 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 insucient 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.
3
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 condential
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
benetted from the de minimis exception under Austrian
law.
4
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 notication 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).
5
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 claried 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 signicantly 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.
6
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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ABUSES OF A DOMINANT POSITION
e Cartel Court, in a decision of May 9, 2011
7
, accepted
commitments from Constantin Filmverleih (a lm distributor
which also runs a number of large cinemas in Austria)
regarding its procedure for oering 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.
8
e Austrian Supreme Court, in a decision of February 28,
2011
9
, 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,
oers 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
claried by the court has been conrmed by the proceedings
so far. ese issues include application of the rules on statute
of limitations (specically, 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
plaintis must prove that their elevators were aected by the
(bid-rigging) cartel. e plaintis tried to avoid this issue
by claiming that the cartel led to an overall price increase in
the market, so that their prices were inated 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 plaintis 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 suered. 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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