Dear Reader,

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

The present edition covers the period from February to May 2013. Among other news, it reflects that the structure of the NCAs keeps evolving: a new Competition Authority has been set up in Belgium and the Netherlands Authority for Consumers and Markets started operating on 1 April. As reported in previous issues, the Slovenian Competition Protection Agency and the Finnish Competition and Consumer Authority commenced operations on 1 January.

More news about the activities of the ECN and its members will be published mid-July 2013. In the meantime, we wish you interesting reading!

Table of contents

Enforcement & Cases

Legislation & Policy

Other issues of interest

ECN Members’ websites

ECN statistics

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ECN BriefECN Brief 02/2013

Welcome to the May 2013 issue of the

ECN Brief

DISCLAIMER:This publication is a compilation of contributions from national competition authorities of the European Union and the Competition Directorate General of the European Commission (“the Authorities”). Information provided in this publication is for information purposes only and does not constitute professional or legal advice. The content of this publication is not binding and does not reflect the official position of any Authority. Neither any Authority nor any person acting on its behalf is responsible for the use which might be made of information contained in this publication. ISSN 1831-6107 KD-AH-13-002-EN-N

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AUTHORITIES

o Belgium: Fines imposed on five large Flour Mills

o Germany: - Multi-million fines imposed on Manufacturers of Drugstore Products - Proceedings against Consumer Goods Manufacturers concluded

o Ireland: Commitments in Case of RPM in Footwear Products

o Latvia: Collective Copyright Management Association fined for Excessive Pricing

o Poland: - Proceedings opened against Mobile Telephony Operators for alleged Abuse of Collective Dominant Position - Proceedings opened against Gas Supplier PGNIG

o Spain: - Fines imposed in Paper Products Cartel Case - Fines imposed on Cartel in Flexible Polyurethane Foam Sector

o European Commission: Microsoft fined for non-Compliance with Browser Choice Commitments

COURTS o Austria:

- Cartel Court imposes Fines on Dairy Company - Fines imposed in Building Insulation Case - Fine imposed in Consumer Electronics Products Case

o Germany: Constitutionality of Central Fining Provision of German Competition Law confirmed

o Malta: Competition and Consumers Appeal Tribunal rules on Access to File by Complainant

ENFORCEMENT & CASES

France: Autorité de la concurrence fines Pig Slaughterers and Professional Bodies for Anti-competitive AgreementsOn 13 February 2013, the Autorité de la concurrence issued a decision whereby it imposed fines for a total amount of € 4 570 000 for four anti-competitive agreements implemented in the pig slaughtering and pork marketing sector. The practices sanctioned are namely agreements on the quantity of pork bought from pig farmers to influence the price of the Brittany pork auction market as well as horizontal agreements on the setting of retail prices. Read more

Spain: Competition Authority imposes Fines in Paper Envelopes Cartel CaseOn 25 March 2013, the Comisión Nacional de la Competencia Council found that several companies active in the manufacture, distribution and marketing of paper envelopes had taken part in a cartel to share out the Spanish paper envelopes market amongst themselves between 1977 and 2010. Read more

Germany: Higher Regional Court increases Fines against Liquefied Petroleum Gas CartelOn 16 April 2013, the Düsseldorf Higher Regional Court has imposed fines of € 244 000 000 on five members of the liquefied petroleum gas (LPG) cartel or their successors. In doing so, the Court raised the total amount of fines to a level higher than that imposed by the BKartA: in 2007, the BKartA had issued orders imposing fines totalling approximately € 180 000 000 on the companies concerned. Read more

Sweden: Market Court upholds City Court’s Decision finding Abuse in Telia Sonera Case On 12 April 2013, the Market Court ordered the Swedish telecom operator Telia Sonera to pay an administrative fine amounting to approximately € 4 000 000 for having abused its dominant position in the broadband market, ADSL, through a margin squeeze. In doing so, the Market Court upholds the decision of the Stockholm City Court finding the abuse but reduces the fine. Read more

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o Austria: Revised Manual on Leniency published

o Denmark: Report on Competition in Retail Banking Sector

o Finland: Legislative Proposal on Competition Neutrality between Public-Sector and Private-Sector Companies

o France: - Autorité sets out Conditions for Network sharing in Mobile Telephony Sector and considers Impact on Competition of national Roaming Arrangements between Mobile Network Operators - Sector Inquiries launched into Distribution of Medicinal Products and interregional Coach Transport

o Lithuania: Competition Council announces Consumer Benefits of 2010-2012 Activities

o The Netherlands: Outcome of NMA’s Action in 2012 is € 251 000 000

o The Nordic Competition Authorities: Joint Report on ‘A Vision for Competition - Competition Policy towards 2020’

o Romania: Launch of Inquiries into Pharmaceutical and Electronic Communication Services Sectors

o Sweden: Proposals of Swedish Government’s Inquiry on Enhanced Effectiveness of Competition Law Enforcement

LEGISLATION & POLICY

Belgium: New Belgian Competition Authority and new Competition ActThe new Belgian Competition Act was adopted on 3 April 2013. It establishes an independent Competition Authority with a simplified structure and introduces significant procedural changes in competition proceedings such as new interim measures and settlement procedures and administrative fines for natural persons involved in hardcore cartel infringements. Read more

The Netherlands: • Netherlands Authority for Consumers and Markets starts operatingOn 1 April 2013, the Netherlands Consumer Authority, the Netherlands Competition Authority and the Netherlands Independent Post and Telecommunications Authority have merged into the Netherlands Authority for Consumers and Markets (ACM), bringing together general competition oversight, industry-specific regulation (energy, telecommunication, transport and postal services) and consumer protection.Read more

• Netherlands Authority for Consumers and Markets launches Consultation on its StrategyOn 11 April 2013, the Netherlands Authority for Consumers and Markets (ACM) launched a consultation on its proposed Strategy. Stakeholders are welcome to comment until 1st June.Read more

Portugal: • Competition Authority adopts Guidelines on Handling of Antitrust ProceedingsIn March 2013, the Portuguese Competition Authority published its first ever Guidelines on the handling of antitrust proceedings: they are applicable to procedures under national and EU competition rules.Read more

• Competition Authority adopts Guidelines on FinesFollowing the entry into force in July 2012 of the new Portuguese Competition Act, the Competition Authority has adopted Guidelines on the setting of fines in antitrust cases.Read more

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EVENTS

o Austria: Report on Conference on Prevention Policy in Competition Law - How Knowledge can avoid Fines

o Germany: Report on 16th International Conference on Competition

o Poland: Report on 12th ICN Annual Conference

o Romania: ECA Meeting and Conference presenting Authority’s Annual Report

o European Commission: Report on Competition Forum

CONTACTS

ECN STATISTICS

Access to Commission Cases

OTHER ISSUES OF INTEREST

© European Union, 2013. Reproduction is authorised provided the source is acknowledged. This publication may contain links to other websites. Linked information is subject to use conditions, disclaimers, copyright and any other conditions and limitations governing linked websites or otherwise applicable.

Hungary: New Units to increase Effectiveness of Cartel Investigations at Competition AuthorityIn view of investigating the most serious cartel cases in a more efficient manner, the Competition Authority has set up a Cartel Detection Section as well a Cartel Investigation Team. The new units started operating on 15 April 2013. Read more

Ireland: European Competition & Consumers DayIn the context of the Irish Presidency of the European Union, the Irish Competition Authority and the National Consumer Agency will host this year’s European Competition and Consumer Day in Dublin on 24 May 2013. The Conference is entitled ‘Competition Policy and Consumer Protection: Challenges and Choices’.Read more

ECN members’ websites

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

Case search

Personalia

• Finland: Management appointed at Finnish Competition and Consumer Authority

• United Kingdom: Office of Fair Trading appoints Chief Economist and announces new Senior Appointments

Annual Reports

• Poland: Annual Report on UOKiK’s Activity 2012 published

Annual Report of all ECN Members

• France: The Autorité de la concurrence fines eight Pig Slaughterers and two Professional Bodies for several anti-competitive Agreements

On 13 February 2013, following a complaint from four pig farmers and the opening of ex officio proceedings which allowed the Autorité de la concurrence (the Autorité) to cover broader practices than the ones which have been initially targeted, the Autorité issued a decision whereby it imposed fines for a total amount of € 4 570 000 for four anti-competitive agreements implemented in the pig slaughtering and pork marketing sector.

The main practice sanctioned is an agreement concluded by five slaughterers on the quantity of pork bought from pig farmers so as to influence the price of the Brittany pork auction market, in which they represented together 80% of the supplies. As a result of those practices, over successive periods covering a total of 12 weeks, the price paid to pig farmers was artificially decreased. Two other horizontal agreements between slaughterers were fined; one related to the setting of the retail price of pork loin and the second concerned the price setting of raw pork supplies where the pork auction market was shut off temporarily.

The Autorité also fined the slaughter houses’ professional body, named ‘French Meat Association’, for sending pricing instructions to its members repeatedly over several years with the aim of countering special offers applied by food retailers on fresh pig meat for slicing.

Eight of the ten firms and associations of undertakings involved challenged neither the facts, nor their legal qualification, which enabled the case to be settled on the basis of the objections that they had received.

In addition, in setting the overall amount of fines, the Autorité, pursuant to the French legal framework, took into account the seriousness of the facts and the extent – highly limited in most cases – of the harm done by the identified practices to the economy. It also adjusted the amount of the fines to the individual situation of each company. In this regard, it took into consideration the fact that some of the companies involved were single-product companies, therefore mostly active in the sector concerned only, and it admitted one inability-to-pay request. The Autorité also granted a fine reduction of 8% to three companies that adopted, for the future, a substantial, credible and verifiable compliance programme that responds to the conditions set out in its guidance of February 2012.

See press release (in English) and decision (in French)

• Spain: The Comisión Nacional de la Competencia imposes Fines in Paper Envelopes Cartel Case

In its Resolution of 25 March 2013, the Comisión Nacional de la Competencia (CNC) Council found that several companies active in the manufacture, distribution and marketing of paper envelopes had taken part in a cartel to share the Spanish paper envelopes market amongst themselves between 1977 and 2010, thereby infringing the Spanish and EU competition rules.

Formal proceedings were opened in this case (S/0316/10) on 15 March 2011 by the Investigations Division of the CNC against 17 companies for alleged anti-competitive practices consisting of price fixing and market sharing on the market for the manufacture, distribution and marketing of paper envelopes in Spain. Before opening the proceedings the Investigations Division of the CNC had carried out inspections in some of these companies. On 11 May 2012, the Investigations Division of the CNC extended the formal proceedings to include a further four companies. The sector concerned is the market corresponding to

AUTHORITIES

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ENFORCEMENT & CASES

the manufacture, distribution and marketing of paper envelopes in the Spanish market, distinguishing between pre-printed or special envelopes, envelopes which according to the customer’s specifications are of a non-standard size, weight or structure, and normal blank catalogue or stock envelopes.

The infringement includes the following types of agreements: agreements to fix prices and share the market for the manufacturing of pre-printed envelopes used for national and regional elections and electoral envelopes for the mailshots sent by political parties through bid-rigging between 1977 and 2010; agreements to share the manufacture of pre-printed envelopes through the sharing of 223 large national customers, both public and private, between 1990 and 2010 and agreements to fix prices and share customers for blank envelopes between 1994 and 2010.

The CNC also established the conclusion of an agreement to limit technical development in the paper envelope market through the formation of a technological consortium that gave rise to the set up in 1997 of the company Cover Formas, S.L. in order to share the technological innovations generated between the cartel members and to limit the licence of those innovations to them.

Accordingly, the CNC Council has decided to impose fines totalling more than € 44 000 000 on 15 companies.

Based on the CNC’s Leniency Programme and on the immunity application which allowed the CNC to carry out inspections on 19 October 2010, one cartel participant benefitted from the immunity to pay the fine. In addition, due to the fact that they subsequently provided information with significant added value, reductions of fines were applied to two cartel participants.

Apart from the companies which have been fined, there is evidence of the participation of a further 16 companies and the sector association in the cartel. However, pursuant to Article 68 of the Spanish Competition Act, the period for opening proceedings was time barred.

See proceedings S/0316/10 (in Spanish)

• Belgium: The Competition Council imposes Fines on five large Flour Mills On 28 February 2013, the Competition Council (the Council) sanctioned five flour mills (Werhahn, Meneba, Ceres, Dossche and Brabomills) for having taken part into a cartel on the market for the production and sale of flour in Belgium, thereby infringing the Belgian and EU competition rules. These mills represent the majority of the production and sale of flour on the Belgian market.

The case concerns horizontal agreements which included the exchange of commercially sensitive information and the coordination of price increases with the purpose of stabilizing each participating mill’s position on the market as much as possible.

The Council found evidence of the existence of the cartel for the period of 2000 until 2006. It found that there had been structural and recurrent contacts between the competing mills. This type of practices is considered as a very serious infringement of competition rules.

The investigation started with leniency applications from Werhahn and Meneba, which were triggered by inspections by the German competition authority, Bundeskartellamt (BKartA), in 2008 at the premises of a number of large German mills. The Dutch Competition Authority (NMa) also carried out an investigation in this sector, which led to the imposition of fines in December 2010 for most of the mills involved in the Belgian case (see ECN Brief 1/2011 and ECN Brief 1/2013).

Given the specific circumstances of the case (length of the procedure, sluggish economic context in the flour industry, financial difficulties of some undertakings) and the fines already imposed by the Dutch Competition Authority, the Council decided to impose limited and lump sum fines.

Dossche, Brabomills and Ceres were fined € 100 000. Meneba benefitted from a leniency reduction and was fined € 70 000. As to Werhahn, it benefitted from immunity because it was the first company to denounce the cartel and to apply for leniency.

See decision of the Belgian Competition Council (in Dutch)6

• Germany: Multi-million Fines imposed on Manufacturers of Drugstore Products on account of anti-competitive Information Exchange

On 18 March 2013, the Bundeskartellamt (BKartA) concluded its proceedings against several manufacturers of branded drugstore products (body care products, cleaning agents and detergents). On account of anti-competitive information exchanges, additional fines of € 39 000 000 were imposed on six companies, a trademark association and several representatives of the undertakings. Between 2008 and the end of 2011, cartel proceedings against nine companies for participation in the same infringement had already been concluded by settlement and the imposition of fines totalling € 24 000 000.

In the course of the investigation, the BKartA established that between 2004 and 2006, information about upcoming price increases, new demands for rebates from the retail trade and the state of negotiations with retailers was exchanged at regular meetings of the trademark association’s working group on ‘body care, cleaning agents and detergents’.

The proceedings were triggered by a leniency application by Colgate Palmolive GmbH, against which no fine was imposed in accordance with the BKartA’s leniency programme. With the latest order, which imposed fines on six companies (Beiersdorf, Erdal-Rex GmbH, Gillette Gruppe Deutschland GmbH & Co. oHG, GlaxoSmithKline Consumer Healthcare GmbH & Co. KG, L’Oréal Deutschland GmbH and Procter & Gamble GmbH), the proceedings have been concluded.

The trademark association Markenverband e.V. was also fined for supporting the information exchange.

A settlement was agreed with Beiersdorf AG whose fine decision is already final. The other decisions can be appealed to the Düsseldorf Higher Regional Court.

See press release (in English)

• Germany: The Bundeskartellamt concludes Proceedings against Consumer Goods Manufacturers

On 27 March 2013, the Bundeskartellamt (BKartA) has concluded a series of proceedings against consumer goods manufacturers with fines totalling approximately € 20 000 000 being imposed on Nestlé Deutschland AG (Nestlé) for an infringement of the German and EU competition rules.

The proceedings were triggered by a leniency application filed by Mars GmbH. The BKartA established that the companies Kraft Foods Deutschland GmbH, Unilever Deutschland Holding AG and Dr. August Oetker Nahrungs KG, as well as Mars GmbH and Nestlé, were involved in an illegal information exchange. During several years, high-ranking sales managers exchanged competition-relevant information such as information about planned price increases or the state of negotiations between their companies and several retailers. The information exchange affected several product areas such as confectionery, hot beverages, pet food and frozen pizza.

In a first step, the BKartA imposed fines totalling approximately € 38 000 000 on three undertakings in 2011 (see ECN Brief 2/2011): those fines decisions have become final. No fine was imposed on Mars GmbH in accordance with the BKartA’s leniency programme. Nestlé was granted a reduction of fine for its cooperation in clarifying the facts in the framework of the same programme.

The decision has been appealed to the Düsseldorf Higher Regional Court by Nestlé.

See press release (in English)

• Ireland: Commitments in Case of Resale Price Maintenance in Footwear ProductsIn February 2013, the Competition Authority (the Authority) secured binding commitments from FitFlop footwear distributor, Double Bay Enterprises Limited, in relation to its policy of resale price maintenance (RPM). Double Bay Enterprises Limited, trading as Brazil Body Sportswear (BBS), is the exclusive distributor

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of FitFlop products in the island of Ireland, and has now undertaken to advise its retailers of (i) their freedom to price the products at their own discretion and (ii) their freedom to supply the products to any customer, regardless of location, who sends an unsolicited order for the products.

In late 2011, the Authority opened an investigation into the pricing of FitFlop footwear products. The investigation was prompted by complaints from retailers stating that BBS was operating a policy of RPM and was imposing other terms and conditions which restricted retailers’ ability to compete with each other for customers. The other terms and conditions operated by BBS included restrictions on mail order and Internet sales by retailers and restrictions on the customers to whom and the territory in which they could sell the FitFlop products.

As part of its investigation, the Authority obtained witness statements from retailers and conducted an unannounced search at BBS’s premises at which documentary and electronic evidence was seized.

Following a review of this evidence, the Authority contacted BBS and offered it the opportunity to avoid High Court proceedings for infringement of section 4 of the Competition Act 2002 and Article 101 TFEU by providing a series of cease and desist commitments to the Authority and having these commitments made an order of the Court under section 14B of the Competition Act, 2002. BBS agreed to proceed in this manner and offered to the Authority the above mentioned commitments which the Authority agreed to accept.

On 14 November 2012, BBS signed an agreement with the Authority setting out these commitments and agreed that the Authority should apply to the High Court to have the agreement made an order of the Court pursuant to section 14B of the Act. The Authority filed the application on 23 November 2012 and the High Court made the requested Order on 18 December 2012.

Section 14B allows a period of 45 days from the making of such an order for certain affected third parties to apply to have the order varied or annulled. No such application was made in this case, so the Order came into effect on 2 February 2013. Failure to comply with such an order constitutes contempt of court.

This power was introduced by the Competition (Amendment) Act 2012 and it is the first time it has been used.

See Enforcement Decision - RPM Footwear Products

• Latvia: The Competition Council fines collective Copyright Management Association for Excessive Pricing

On 2 April 2013, the Competition Council of Latvia (CC) adopted a decision to fine the collective copyright management association AKKA/LAA for having abused its dominant position by applying excessive tariffs in Latvia, and thereby infringing Latvian and EU competition rules.

AKKA/LAA has exclusive rights to licence public use of musical works in Latvia and represents both Latvian and foreign authors.

The CC found that royalty tariffs for music airplay in retail spaces and customer service areas set by AKKA/LAA for small and medium businesses in Latvia were substantially higher than similar tariffs not only in neighbouring Lithuania and Estonia, but also in the majority of other EU member states.

Music airplay in premises that do not exceed 300 m² cost businesses in Latvia at least twice as much as in Lithuania and Estonia, which are countries with a comparable economy and welfare level as Latvia. Tariffs in Estonia are substantially lower in all categories. In Lithuania, tariffs are lower for undertakings with premises under 850 m², while tariffs for larger businesses slightly exceed those of Latvia.

Moreover, the comparison undertaken by the CC, using purchasing power parity and the GDP index, showed that tariffs in Latvia are 50 to 100% higher (depending on the size of premises) than the EU average.

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The CC concluded that such excessive tariffs were not objectively justified and reduced the competitiveness of businesses in Latvia, both within the Baltics and on the international level. It found that this constitutes an infringement of Article 13(1)4) of the Latvian Competition Act and Article 102(a) TFEU. The amount of the fine was set at € 64 948.

See more information on the price comparison (in English)

• Poland: The Office of Competition and Consumer Protection (UOKiK) opens Proceedings against Mobile Telephony Operators for alleged Abuse of Collective Dominant Position

On 18 March 2013, the President of the Polish Office of Competition and Consumer Protection (UOKiK) opened antimonopoly proceedings against Polkomtel (the owner of, among others, Plus), Polska Telefonia Cyfrowa (including T-Mobile and Heyah) and Polska Telefonia Komórkowa Centertel (including Orange) to verify whether they have abused their collective dominant position on the domestic market for mobile telephony.

The proceedings were instituted upon information received from the President of the Office of Electronic Communications and another network operator (Play). According to this information, the price for one minute of connection charged to Play when using the networks of the above mentioned operators was much higher than the prices charged to the remaining operators (e.g. the tariff of one operator stipulated that the cost of a connection to a number within the Play network amounted to PLN 0.75, while the connection to other operators amounted only to PLN 0.29).

In the course of explanatory proceedings (proceedings held before the institution of antimonopoly proceedings to determine whether an infringement of competition law has been taking place, which would justify the institution of antimonopoly proceedings), UOKiK examined both the tariffs for individual clients and the wholesale costs incurred by the network operators when starting the connection within their own network and finishing it in the targeted network. This initial analysis of UOKiK showed that the actual costs borne by the operators do not provide sufficient grounds for such a diversity of rates as was applied to the Play network. UOKiK suspects that these practices may be restricting competition on the mobile telephony market by hampering the operations of entities other than the three market leaders.

The proceedings will be conducted on the basis of national provisions as well as EU rules. UOKiK will examine whether the undertakings’ practice might have affected the trade between the EU Member States by for example foreclosing entry to the Polish market for other telecommunications operators.

See press release (in English)

• Poland: The Office of Competition and Consumer Protection opens Proceedings against Gas Supplier PGNiG

On 3 April 2013, the President of the Polish Office of Competition and Consumer Protection (UOKiK) instituted antimonopoly proceedings against the gas supplier Polskie Górnictwo Naftowe i Gazownictwo (PGNiG), to verify whether it had abused its dominant position on the retail and wholesale markets of gas supply.

PGNiG is dominant on the wholesale market of natural gas supply. In addition, the undertaking owns approximately 98 % of shares on the domestic retail market for natural gas supply, which gives it a dominant position also on this market.

During explanatory proceedings, UOKiK has taken a closer look at the agreements PGNiG had concluded with its industrial contractors and with its retailers, as well as at the standard contract forms used by PGNiG. The initial analysis of the clauses contained in these agreements has shown that they might be restrictive of competition. More specifically, UOKiK has questioned clauses which restricted gas recipients from decreasing the amount of gas fuel they would order for the following years, in comparison with the amount they indicated in the previous orders. Similarly, UOKiK has looked at clauses which prevented contractors from reselling the gas that they had purchased from PGNiG.

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Such provisions could, in UOKiK’s view, counteract the formation of conditions necessary for the emergence or development of competition on the retail and wholesale markets of gas supply.

The proceedings will be conducted on the basis of national provisions as well as EU rules. UOKiK will examine if the practice of the company might have affected the trade between EU Member States, thus infringing Article 102 TFEU. If the allegations prove to be correct, the undertaking may be subject to a financial sanction of up to 10 % of its revenue.

See press release (in English)

• Spain: The Comisión Nacional de la Competencia fines three Companies for Cartel in Paper Products Sector

In its Resolution of 15 February 2013, the Comisión Nacional de la Competencia (CNC) Council found that Enri 2000, S.A., Pacsa, Papelera del Carrión S.L. and Unipapel Transformación y Distribución S.A. took part in a cartel agreement to share the Spanish paper products market between 1995 and 2010, fixing, as part of the same agreement, the minimum prices of the basic products and the annual increases that they were to apply to these products and to the rest of the related products. The CNC Council found that the cartel participants are responsible for an infringement of both Article 1 of the Spanish Competition Act and Article 101 TFEU.

The starting point of the agreement was the mutual respect one another’s large customers being the main large retailers. It also entailed the establishment of minimum prices for a set of basic products which were increased annually, usually before the operation known as “Vuelta al Cole” (Back to School), and the fact that these increases also applied to numerous related paper products.

Based on the above, the CNC Council has decided to set the amount of the fines as follows: € 3 539 625 on Unipapel Transformación y Distribución S.A. jointly and severally with its parent company Unipapel S.A. (now Adveo Group International S.A.); € 1 324 440 on Pacsa, Papelera del Carrión S.L. jointly and severally with its parent company Manufacturas Tompla; and € 4 207 881 on Enri 2000, S.L. jointly and severally with its parent company Hodham.

Pursuant to the leniency programme, Unipapel Transformación y Distribución S.A and Unipapel S.A. (now Adveo Group International S.A.) benefited from immunity from the fines which could have been imposed on them. In addition, due to the fact that they have produced information with a significant added value, a reduction of 35% has been awarded to Pacsa, Papelera del Carrión S.L. and Manufacturas Tompla S.A., meaning that the fine imposed on them amounts to € 860 886.

In this case, formal proceedings were opened on 27 April 2011 by the Investigations Division of the CNC for a possible anti-competitive practice consisting in agreements to fix prices and to share the market for the manufacture, marketing and distribution of paper products (notebooks, exercise books etc.) in Spain. Prior to doing so, the Investigations Division of the CNC had carried out inspections in some of these companies.

See proceedings S/0343/11 (in Spanish)

• Spain: The Comisión Nacional de la Competencia fines ten Companies and Sector Association for Cartel in Flexible Polyurethane Foam

In its Resolution of 28 February 2013, the Comisión Nacional de la Competencia (CNC) Council found that several companies active in the sector of the flexible polyurethane foam (used in the comfort industry, i.e. in upholstery, mattresses, chairs, footwear…) in Spain as well as the Spanish Association of Polyurethane Foam Businesses (Asociación Española de Empresas de Espuma de Poliuretano - ASEPUR) had been taking part in a cartel since January 1992 until at least 2011.

It was established that in the first phase starting in 1992, the companies agreed on prices and shared

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production by reference to quotas or ‘limits’ that the operators could not exceed. This agreement was designed and controlled by external auditors. The investigation showed that the cartel members tried to give to their practices the appearance of audits carried out in view of reducing the emission of contaminating compounds in the foam production process. From 2000 onwards, as the stability of the agreement was threatened by increased sales by Portuguese companies on the Spanish market, the members of the cartel focused their collusion on price increases. This coordination took place during the meetings organised under the auspices of ASEPUR. It appeared that Portuguese companies, some of which were not members of ASEPUR, also participated in these agreements from 2000 onwards, in particular Flex 2000-Produtos Flexiveis S.A. and Euroespuma.

In its decision, the CNC Council concluded that an infringement of both Article 1 of the Spanish Competition Act and Article 101 TFEU has been committed consisting of concerted practices of fixing prices and sharing the market which constitute a cartel.

It has therefore set the amount of the fines as follows: € 250 000 on ASEPUR in its capacity as a crucial collaborator in the practices; € 1046 000 on Eurospuma-Sociedade Industrial de Espuma Sintéticas S.A.; € 2 661 000 on Flexipol Espumas Sintéticas S.A., for which its parent company is held jointly and severally liable; € 7 575 000 on Flex 2000-Produtos Flexiveis S.A. jointly and severally with its parent company Cordex S.G.P.S.; € 805 000 on Interplasp S.L.; € 1 020 000 on Pagola Poliuretanos S.A.; € 9 358 000 on Recticel Ibérica S.L. jointly and severally with its parent company Recticel (Recticel); € 997 000 on Tepol S.A.; € 1 970 000 on Torres Espic S.L. and € 668 000 on Yecflex S.A.

Pursuant to the Spanish leniency programme, Recticel has been exempted from the payment of the fine that the CNC Council could have imposed on it, following the immunity application submitted on 9 August 2010 for its own benefit and for the benefit of its subsidiaries. In addition, due to the fact that it provided information with a significant added value, a reduction of 40% of the fine is applied to Flex 2000-Produtos Flexiveis S.A., as well as a partial exemption for having provided evidence extending the duration of its participation in the infringement as well as the one of Euroespuma. As a result, the fine imposed on Flex 2000-Produtos Flexiveis S.A. amounts to € 4 521 000. In the case of Flexipol Espumas Sintéticas S.A., which was the third leniency applicant, the information provided in its application for a reduction has been assessed as not providing significant added value and no reduction of the fine has been granted.

The Investigations Division of the CNC had decided, on 13 April 2011, to open formal proceedings in relation to restrictive practices, consisting of the adoption of agreements to share the market of flexible polyurethane foam and the fixing of prices on that market. On 16 February 2011, inspections had been carried out at the head offices of the main companies in the sector in the Spanish territory. It must be pointed out that in the context of the investigation carried out in this case, the Spanish and Portuguese authorities have cooperated in accordance with the provisions of Regulation 1/2003.

See proceedings S/0342/11 in Spanish

• European Commission: Microsoft fined for Non-Compliance with Browser Choice Commitments

On 6 March 2013, the European Commission (the Commission) imposed a fine on Microsoft for failing to comply with binding commitments. According to those commitments, Microsoft had to display to Windows users in the EEA that have Internet Explorer set as default a web browser, a “Choice Screen” enabling them to easily choose their preferred web browser.

The Commission found that Microsoft failed to roll out the Choice Screen with its Windows 7 Service Pack 1 from May 2011 until July 2012. It imposed a fine of € 561 000 000, corresponding to 1.02% of Microsoft’s turnover.

This is the first time that the Commission has fined a company for non-compliance with a commitments decision. In the calculation of the fine the Commission took into account the gravity and duration of the infringement, the need to ensure the deterrent effect of the fine and, as a mitigating circumstance, the

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fact that Microsoft has cooperated with the Commission and provided information which helped the Commission to investigate the matter efficiently.On 16 December 2009, the Commission adopted a Decision pursuant to Article 9(1) of Regulation 1/2003 making commitments offered by Microsoft binding and enforceable. Microsoft had offered commitments to meet the Commission’s concerns relating to the tying of Microsoft’s web browser (Internet Explorer) to its dominant client PC operating system (Windows).

Microsoft committed in particular to make available a Choice Screen enabling Windows users in the EEA to choose in an informed and unbiased manner which web browser(s) they wanted to install on their computers. The commitments last for a period of five years until December 2014.

In June 2012, the Commission was informed of a possible failure to comply with the Choice Screen commitments by Microsoft. Microsoft acknowledged a failure to roll out the Choice Screen with Windows 7 Service Pack 1.

The failure was due to a series of errors and omissions including technical malfunctions and communication problems within Microsoft. As a consequence, for a period of 14 months, around 15 000 000 users did not see the Choice Screen as they should have.

The Commission concluded that Microsoft acted negligently. It also regarded the infringement committed by Microsoft as a serious one. It however considered the fact that Microsoft helped the Commission to more efficiently investigate the case by providing evidence of the failure to comply as a mitigating factor.

More information on the case is available on the competition website, in the Commission’s public case register under case number 39530.

• Germany: The Düsseldorf Higher Regional Court increases Fines against Liquefied Petroleum Gas Cartel

On 16 April 2013, the Düsseldorf Higher Regional Court - the Oberlandesgericht Düsseldorf (the Court) has imposed fines of € 244 000 000 on five members of the liquefied petroleum gas (LPG) cartel or their successors. The companies concerned are Friedrich Scharr KG; Primagas GmbH, Krefeld, now Salzgitter Gas GmbH; Progas GmbH & Co. KG, Dortmund; Sano-Propan GmbH, Nuremberg and Tyczka Totalgaz GmbH, Geretsried.

The Court has raised the total amount of fines to a level higher than that imposed by the Bundeskartellamt (BKartA) on the companies concerned. In 2007, the BKartA had issued orders imposing fines totalling approximately € 180 000 000 on the five cartel participants.

In its judgment, the Court confirmed that from July 1997 to April 2005 the companies concerned operated a system of customer protection agreements related to their sales of LPG for standard tanks of up to 2.9 T in order to eliminate competition between one another. Tanks of this type are used mainly by smaller commercial and household customers. Assisted by a system of so-called ‘notification of competition’ run by a logistics company - jointly operated by Transgas Flüssiggas Transport und Logistik GmbH & Co. KG - on which a fine was also imposed, the companies concerned agreed not to poach customers from one another. Customers wishing to switch supplier were either not quoted a price, or if so, only an excessive ‘deterrent price’.

The decision of the Court to increase the amount of the fines is based on the duration of the agreement and the severity of the infringement.

The Court’s judgment is not yet final. The companies can appeal on points of law to the Federal Court of Justice.

COURTS

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Separate proceedings have been conducted against the successor of another member of the cartel, Tyczka Energie GmbH, now Tyczka Gase GmbH. According to recent case law of the Federal Court of Justice, this company may be acquitted even if it is proved that it was involved in the cartel, because it has in the meantime been legally restructured.

Furthermore separate proceedings have been initiated against the companies Drachen-Propangas GmbH, Propan Rheingas GmbH & Co. KG and Westfalen AG for their involvement in the above mentioned agreements. The Court will rule on their participation in separate proceedings.

• Sweden: The Market Court upholds City Court’s Decision finding Abuse in Telia Sonera Case On 12 April 2013, the Swedish Market Court (the Market Court) ordered the Swedish telecom operator Telia Sonera Sverige AB (Telia Sonera) to pay an administrative fine amounting to SEK 35 000 000 (approximately € 4 000 000) for having abused its dominant position in the broadband market, ADSL, through a margin squeeze. In doing so, the Market Court upholds the decision of the Stockholm City Court (the City Court) finding the abuse but reduces the fine.

In 2004, the Swedish Competition Authority (SCA) filed proceedings before the City Court against Telia Sonera. The SCA claimed that it had abused its dominant position in the market for access to fixed access networks via resale services for ADSL connections during the period from 2000 to 2003. During this period, the transfer from dial-up Internet connections (via a modem) to broadband connections was in full progress.

In 2009, the City Court requested a preliminary ruling from the European Court of Justice (ECJ) asking a series of questions on the interpretation of Article 102 TFEU. In its preliminary ruling of 17 February 2011, the ECJ confirmed, inter alia, that margin squeeze is a standalone abuse and that it can be an abuse even if the dominant undertaking has no legal obligation to supply its downstream competitors. (See ECN Brief 02/2011).

After the main hearings, the City Court concluded that Telia Sonera had squeezed its margin on several occasions during the period from 2000 to 2003 and ordered Telia Sonera in December 2011 to pay fines amounting to SEK 144 000 000 (approximately € 15 000 000). (See ECN Brief 01/2012). The judgment was appealed by Telia Sonera to the Market Court, which is the court of final instance in competition cases.

Like the City Court, the Market Court found that Telia Sonera had abused its dominant position by offering wholesale and end user services for broadband connections at prices where the margin between the wholesale price and the price to households was insufficient to cover Telia Sonera’s own costs for offering broadband to households (Telia Sonera charged its competitors a higher price than it charged households). The Market Court thus concluded that the margin squeeze constituted a serious infringement of the competition rules.

However, the Market Court found that the fine which had been imposed by the City Court should be reduced to SEK 35 000 000, partly because the margin squeeze took place more than ten years ago, and partly because the margin squeeze had taken place during a limited time period (between eight and nineteen months) and on a limited part of the market.

See decision of the Market Court (in Swedish)

• Austria: The Cartel Court imposes Fine on Dairy CompanyOn 23 January 2013, the Cartel Court imposed a fine of € 1 125 000 on the dairy producer Berglandmilch (Court reference number 29 Kt 77/12): Berglandmilch was found to have participated in an infringement of Article 101 TFEU and § 1 of the Cartel Act 2005. The Cartel Court held that Berglandmilch agreed on consumer prices with several food retailers between 2006 and 2012. The product concerned is mainly cheese. Cases against the food retailers are pending.

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The fine follows an ex officio investigation and inspections conducted in 2012 by the Federal Competition Authority (FCA) at Berglandmilch’s premises and several food retailers’ premises. After the inspection, Berglandmilch cooperated with the authority in bringing the infringement to an end. The proceedings were ended via a settlement procedure.

The FCA is currently looking into a number of cases of vertical restraints in the food retail sector. It has conducted around twenty inspections in this sector since last year.

See further (in German)

• Austria: Additional Fines imposed by Cartel Court in Building Insulation CaseFollowing several inspections conducted in 2012 and the applications for fines by the Federal Competition Authority (FCA), the Cartel Court imposed on 25 February 2013 fines on a producer and a merchant for resale price maintenance in the building insulation sector (Court reference numbers 27 Kt 75, 76, 77/12, 27 Kt 57/12, 27 Kt 49/12, 27 Kt 38/12). The first fines in this case were imposed between July and November 2012 (see ECN Brief 5/2012). The total amount of the fines imposed in this case is € 1 045 000.

Due to the cooperation and acknowledgement by the companies of the factual findings and legal assessment of the FCA, the latter proposed a settlement reduction of the fines applied for with the Cartel Court. In its decision, the Cartel Court held that the companies participated in an infringement of Article 101 TFEU and § 1 Cartel Act by having agreed on consumer prices and decided to impose fines on them following the FCA’s application

All parties waved their right to appeal the Cartel Court’s decision which is therefore final.

See press release (in German)

• Austria: The Cartel Court imposes Fine in Consumer Electronics Products CaseOn 26 March 2013, the Cartel Court imposed a € 2 900 000 fine on Philips Austria GmbH (Philips Austria) for Resale Price Maintenance (RPM) between the latter and a number of retailers (Court reference number 29 Kt 26/13). The decision follows the Federal Competition Authority’s (FCA) application.

The vertical restraints in the context of online retailing, which were found to take place between 2009 and mid-2012, concern the whole range of consumer electronic products offered by Philips Austria.

The starting point of the FCA’s investigation was a survey of online retailers by the Vienna University of Economics and Business (Wirtschaftsuniversität Wien) which indicated, inter alia, that certain industry players in Austria would exercise pressure on local trading partners’ resale prices. Further investigations revealed indications that Philips Austria is one of the industry players that enforce RPM against online retailers. These indications had led to an inspection in September 2012. Subsequently, Philips Austria fully cooperated with the FCA in clarifying the facts and provided additional information to support the FCA’s investigation.

In light of the cooperation and as part of a settlement, the FCA applied for a fine of € 2 900 000 with the Austrian Cartel Court in mid-February.

All parties waived their right to appeal the Cartel Court’s decision which is therefore final.

See press release (in German)

• Germany: The Bundesgerichtshof confirms Constitutionality of Central Fining Provision of German Competition Law

On 26 February 2013, the Bundesgerichtshof, (Federal Court of Justice) the highest German court in

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cartel cases, has upheld a judgment by the Oberlandesgericht Düsseldorf imposing fines on several manufacturers of grey cement for participating in market sharing agreements. During the 1990s, leading producers of cement had carved up the German cement markets among themselves. For this reason, the Bundeskartellamt (BKartA) imposed fines on several cement producers in 2003. The companies appealed the fine decisions to the Oberlandesgericht Düsseldorf which decided in 2009 that fines amounting to € 278 700 000 should be imposed on the cartel members. The case subsequently was appealed to the Bundesgerichtshof.

In its judgment, the Bundesgerichtshof confirmed that the central fining provision of German competition law, Section 81(4) ARC (Act against Restrictions of Competition), is in line with the constitutional law principle of nulla poena sine lege, subject to the Court’s interpretation of the norm.

Modelled on Article 23(2) of Regulation 1/2003, Section 81(4) ARC prescribes that fines of up to 10% of turnover can be imposed on undertakings for infringing Articles 101/102 TFEU and the equivalent provisions of German competition law. Since the adoption of the provision in 2005, there had been discussions about the conformity of Section 81(4) with the nulla poena sine lege principle as laid down in the German constitution and interpreted by the case law of the Bundesverfassungsgericht, the German Constitutional Court.

The discussion concerned in particular the question whether the 10% limit sufficiently determines the maximum fine that can be imposed. According to the case law of the Bundesverfassungsgericht, the legislator has to prescribe a sanctioning ‘frame’ for a criminal offence within which the judge has to set the sanction that corresponds to the particular factual circumstances of the case. In this context, the upper range of the frame represents the sanction to be imposed for the most severe type of offence.

Against the background of this case law, the Bundesgerichtshof has now held that as long as the 10% limit is interpreted as the upper range of a sanctioning frame, it is in line with the nulla poena sine lege principle. The 10% limit cannot, according to the Court, be interpreted as a ‘cap’ to cut the fine imposed at a maximum level. The ruling has led the BKartA to suspend the application of its fining guidelines. The fining method as set out in the guidelines included an interpretation of the 10% limit as a cap, modelled on EU practice.

The BKartA is currently considering the further implications of the judgment for its future fining practice. It can impose fines on the basis of Section 81(4) ARC, taking into account the Bundesgerichtshof judgment, without reference to guidelines.

• Malta: The Competition and Consumer Appeal Tribunal rules on Access to File by ComplainantOn 27 February 2013, in Hon. Mizzi vs Office for Competition, the Competition and Consumer Appeal Tribunal (the Tribunal) reached a decision in parte clarifying the extent to which information contained in the investigative file of the Office for Competition (the Office) can be accessed by a complainant. The Tribunal ruled that in the absence of a provision in the Competition Act (the Act) specifying which information may be accessed by a complainant, the Tribunal, pursuant to the powers conferred upon it by the Act, will have recourse to sources of EU law (such as Commission Regulation 773/2004 and Commission Notice on the handling of complaints) and case law to decide on the issue.

The Tribunal observed that European Commission decisions, notices, regulations and European Courts’ judgments follow a clear line of thought and provide a marked distinction between, on the one hand, the specific and limited procedural rights of the complainant to have access to the documents on which the Commission has based its provisional assessment to reject a complaint and, on the other hand, the right of access to file enjoyed by the undertakings under investigation which have been notified with a statement of objections.

The Tribunal considered that where the Office rejects a complaint, only the information used by the Office in reaching its decision shall be accessible to the complainant. The Tribunal held that it is not proper to allow the complainant to interfere with the investigative mechanism of the Office so as to discover information not relevant to the decision to reject the complaint or to inquire into how the Office conducted its investigation. The Tribunal observed that it was essential for the Office to be in a position to carry out its tasks in the public interest which interest may not necessarily coincide with that of third

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• Belgium: New Belgian Competition Authority and new Competition ActA new Belgian Competition Act (the Act) was adopted on 3 April 2013. This new Act establishes an independent Competition Authority with a simplified structure and introduces significant procedural changes in competition proceedings.

The new Competition Authority becomes an autonomous legal entity, managed by a board of directors consisting of the president of the Competition Authority, the Prosecutor General, the Chief Economist and the General Legal Counsel.

Although the Authority will now be fully integrated in one autonomous institution, there will still be a division between the decision making body, the Competition College, and the service in charge of the investigation, which is composed of the Prosecutor General and his staff of prosecutors. The new Competition College replaces the Competition Council, the former decision-making body and will be composed of the President of the Authority and two assessors.

This reform of the Competition Act not only introduces a new enforcement structure, but also some meaningful procedural changes:

• A new interim measures procedure is put in place, with strict deadlines and the removal of the requirement of a prima facie investigation by a competition prosecutor, in order to achieve a more efficient procedure;

• A settlement procedure for cartel and abuse cases is introduced as an important tool to avoid lengthy procedures for undertakings, as well as the associated insecurity and costs. In order to settle, the company has to admit its liability for the infringement and has to accept to pay a fine on which it will receive a reduction of 10%. A major consequence of the settlement is that the company will not be able to appeal the settlement decision;

LEGISLATION & POLICY

parties who may have their own reasons or motives for requesting access to the information.

At the same time, it was made clear that, in view of Maltese procedural law, the Tribunal, in the interest of justice, could assess the documents that the Office decided not to disclose, although this discretion should be used narrowly and only in particular circumstances. Furthermore, the Tribunal observed that the provisions of the Freedom of Information Act (Chapter 496 of the Laws of Malta) and the Administrative Justice Act (Chapter 490 of the Laws of Malta) had to be interpreted in the light of the nature of the proceedings involving the application of competition law.

The Tribunal ruled that in this particular case it appeared that the documents on which the Office based its decision had been exhibited and the complainant had been given a copy thereof. The information requested by the complainant, which information was not used by the Office in arriving at its decision, was not such as to cause the Tribunal to deviate from European law and case-law and use its discretion under Maltese procedural law to order the Office to exhibit them.

Although the case at hand is based on national competition law, the principle therein established should be equally applicable to cases based on EU competition law.

See case information in Maltese (available upon request)

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• The new Act also allows the Competition Authority to impose administrative fines on natural persons involved in hardcore cartel infringements with the aim of increasing deterrence.

Apart from the above mentioned changes, the Act introduces new rules to further streamline procedures. Such rules deal more specifically with the following issues: mandate for inspections which has to be awarded by the investigating judge; recognition of confidentiality of documents; access to the investigation file which will be limited to the defendants; formalized state of play meetings with access to file as well as limited possibility to introduce new documents before the College and a strict timetable for procedures.

The Act is composed of two acts of Parliament because some provisions required an adoption by the two houses of parliament and others did not. The two texts will be merged and the numbering of the articles will be maintained.

It is foreseen that the new Competition Authority should start operating in the second half of 2013.

See the new law in Dutch and French (request form)

• The Netherlands: The Netherlands Authority for Consumers and Markets starts operatingOn 1 April 2013, the Netherlands Consumer Authority (CA), the Netherlands Competition Authority (NMa) and the Netherlands Independent Post and Telecommunications Authority (OPTA) have merged into the Netherlands Authority for Consumers and Markets (ACM), bringing together general competition oversight, industry-specific regulation (energy, telecommunication, transport and postal services) and consumer protection.

The consolidation of the NMa, OPTA, and the CA combines the best of all three authorities, where the ACM’s duties encompass the combined duties of the consolidated authorities. The new authority’s mission is to increase welfare by promoting the competitive advantages of businesses, and to strengthen the position of consumers. The Board of the ACM is granted full independence. It consists of Chris Fonteijn as Chairman, joined by Mr Henk Don and Ms Anita Vegter.

In recent years, the NMa, OPTA and the CA adopted a high-trust regulatory approach, which meant they deployed their resources selectively, but took vigorous action when regulations were violated. The central government is currently facing spending cuts, but, at the same time, is also faced with the public’s high expectations of regulatory oversight: this particular combination makes the necessity for harmonization and cooperation between regulators even more urgent. With the consolidation of the NMa, OPTA, and the CA, the new authority can anticipate market-, international-, and technological developments in a flexible and integrated manner, making more effective oversight possible.

The ACM has six departments: Competition, Energy, Consumers, Telecom Transport & Postal Services, Policy & Strategy, and Corporate Services. The Competition department is the largest, with 130-140 Full Time Equivalents (FTE). The other departments have between 70-90 FTE. Departments are made up of teams, with each team having approximately 15 FTE. In addition, the Office of the Chief Economist will have around 5 FTE, which may increase if the ACM decides to conduct more economic research of its own.

In October 2012, the Dutch House of Representatives passed the bill establishing the ACM. Another bill is currently being prepared, which proposes to simplify and streamline the existing procedures and powers of the merged authorities in the ACM.

The ACM can be reached at +31-70-722-2000 and by email at info@acm.nl

See further information on the Authority’s website

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• The Netherlands: The Netherlands Authority for Consumers and Markets launches Consultation on Strategy and sets Keys Priorities for 2013

On 11 April 2013, the Netherlands Authority for Consumers & Markets (ACM), which started its activities on 1 April 2013, launched a consultation on its proposed Strategy. The consultation will end on 1 June 2014. The ACM’s proposed Strategy can be summarized as follows.

The task with which the ACM has been entrusted by the European and Dutch legislatures determines its actions. The ACM’s activities encompass general competition oversight, regulation of the energy, telecommunication, postal services, transport markets (or parts thereof), and consumer protection. The common objectives behind these activities are promoting well-functioning markets, ensuring well-organized and transparent market processes, and fair treatment of consumers.

The ACM’s primary goal is to increase consumer welfare by making markets work in the interest of consumers. The ACM wishes to see markets in which consumers have an actual choice, and in which businesses can compete freely to the benefit of consumers. That is why the ACM’s statutory task has been incorporated in the following mission statement:

‘the ACM promotes opportunities and options for businesses and consumers’

The ACM seeks to strengthen the position of consumers, making them better informed and thus enabling them to make well-informed choices. It stimulates competition, and regulates markets in a way that optimizes the outcome for consumers. The desired result is sustainable welfare growth in the broader sense of the word. It includes welfare growth as a result of financial and qualitative effects for consumers, both in the short and long run.

The ACM is fully aware of the social context in which it operates. Its creation coincides with a broader social trend, where the free-market system is scrutinized, and the protection of public interests must meet ever stricter requirements. The ACM therefore chooses to approach market and consumer problems in an integrated manner, while keeping in mind the different public interests at stake.

The ACM builds on the work of its predecessors: the NMa, OPTA and the CA. However, it wishes to be more than just the sum of its parts. By bringing together the powers and expertise of the three regulators, and by reorganizing the new authority, the ACM aims for a higher level of effectiveness and efficiency. Consumer interests and consumers are the common thread in all of its work. The ACM is open towards its stakeholders, and will include them in finding solutions to problems.

Every year the ACM will release a Market Outlook in which it outlines trends and developments and highlights specific topics and problems in the field of the ACM’s operations. The ACM aims to solve market and consumer problems, or better yet, prevent them. Apart from its regular activities such as fighting cartel agreements, reviewing mergers and acquisitions, informing consumers and competition enforcement in general, the ACM has set out the following key priorities for 2013:

• Housing market chain: specifically focusing on competition and entry barriers in mortgage markets;

• Health care sector: the affordability of drugs and medical equipment;

• Telecommunication sector: the ACM aims to meet the objective laid out by the European Digital Agenda, namely broadband internet for all Europeans in 2013. Also, given the recent introduction of the 4G network in the Netherlands, the ACM will closely examine whether these important developments lead to increased competition with benefits for consumers;

• Energy markets: stimulating further integration of the energy markets to enhance competition, making energy affordable and ensuring consumers receive a single energy bill;

• Sustainability: companies can increase consumer welfare by sustainable production but such initiatives should not be abused to impede competition.

The full ACM’s draft strategy document, market outlook and key priorities for 2013 can be accessed at the Authority’s website

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• Portugal: The Competition Authority publishes Guidelines on Handling of Antitrust Proceedings In March 2013, the Portuguese Competition Authority (PCA) published its first ever Guidelines on the handling of antitrust proceedings (Guidelines), which are applicable to procedures under national and EU competition rules.

The Guidelines were approved pursuant to Article 25(7) of the new Competition Act (Law No. 19/2012, of 8 May 2012: see ECN Brief 2/2012), and following a public consultation which occurred between July and September 2012. They draw on the experience of the PCA in enforcing the previous Competition Act and incorporate amendments introduced by the new Competition Act. In drafting those guidelines, the PCA also took into account the European Commission’s Notice on best practices for the conduct of proceed-ings concerning Articles 101 and 102 TFEU.

The Guidelines aim to clarify how the PCA acts when investigating and handling antitrust procedures under the new Competition Act, thus ensuring more transparency and predictability. They also aim to promote and facilitate cooperation with parties involved in case proceedings and, consequently, increase efficiency in the assessment of antitrust infringements.

The Guidelines include information on the most important steps of the procedure, from the initiation of proceedings to the final decision, including investigative measures, the statement of objections and the exercise of rights of defence, commitments and settlements. Issues related to access to file and the publication of decisions are also dealt with in the text.

For further information on the Authority’s website:

• Portugal: The Competition Authority adopts Guidelines on FinesFollowing the entry into force of the new Portuguese Competition Act, Law No. 19/2012 of 8 May 2012, (see ECN Brief 2/2012), the Portuguese Competition Authority (PCA) has adopted new Guidelines on the setting of fines in antitrust procedures (Guidelines). The Guidelines are applicable to procedures both under national law and Articles 101 and 102 TFEU.

The Guidelines aim at promoting transparency and objectivity in the PCA’s decisions. They also aim to contribute to legal certainty and to strengthen the deterrence effect of fines.

The Guidelines set out that the method for setting the fines will typically involve the following steps: (i) determination of the basic amount of the fine for each party; (ii) increase or reduction of the basic amount of the fine according to aggravating or mitigating circumstances of the case (as an adjustment of the basic amount); and (iii) increase or reduction of the amount of the fine taking the facts of the case into consideration, including the benefits reaped by parties from the infringement, as well as general or specific prevention objectives required by each case (concrete setting of the fine).

The basic amount of the fine is a percentage of the turnover related to the infringement, determined according to the gravity of the infringement which is multiplied by the number of years of the duration of the infringement.

The Guidelines were approved after a public consultation period in 2012, and take into account the European Commission Guidelines on the method of setting fines.

For further information see www.concorrencia.pt

• Austria: Revised Manual on Leniency adoptedOn the occasion of the recent amendment of the Austrian competition law (see ECN Brief 1/2013) the Federal Competition Authority (FCA) has revised the existing Manual on Leniency (ML). The first ML had been published with the coming into force of the legal rules on leniency in 2006 and has been revised in November 2011 (see ECN Brief 1/2012). The actual revision of the ML takes into account the case law of the Cartel Court and the Supreme Cartel Court and seeks a further alignment with the ECN Model

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Leniency Programme (MLP), including its latest revision published in November 2012.

The major changes are as follows:

• Level of evidence to be provided by the first leniency applicant (so called ‘type 1A’): the new ML contains a detailed list of evidence and information to be provided which is in line with the MLP. Since there was no indication of the necessary evidence to be provided by the leniency applicant in the previous Austrian ML, the evidential threshold for immunity is thus increased

• Immunity application after inspections by the FCA (so-called ‘type 1B’) based on the new § 11 (3) 1 lit b Competition Act: The ML clarifies that, despite the open formulation of the legal basis, immunity will be granted only once either to a type 1A or to a type 1B applicant in a given case. A type 1B applicant submits evidence after the FCA has carried out an inspection or has sufficient evidence to apply for a search warrant. The applicant has to provide additional evidence that allows successful proof of an infringement of Art 101 TFEU (or § 1 Cartel Act) in a procedure before the Cartel Court.

• Marker system: In alignment with the MLP the new ML opens the marker system to all immunity applicants (as previously it was available only for cases with EU-dimension). The FCA grants a marker when an applicant delivers all information required by the form attached to the ML. The FCA sets a period not exceeding eight weeks within which the applicant has to perfect the marker.

• Summary applications: An applicant that has filed, or is in the process of filing, a leniency application with the European Commission may file summary applications with FCA. The marker is granted based on the date and time of the summary application. In this case, full submission of all relevant evidence within a given time limit is only required by the FCA, if it decides to act upon the case.

Further amendments include the possibility to confidentially approach the FCA to clarify if immunity is still available in a particular case as well as a clarification of the applicant’s duty to cooperate (e.g. with relation to former employees). The ML also clarifies that applications for immunity or for reduction of fines are not taken into consideration once the FCA has filed an application to impose a fine with the Cartel Court.

See Manual (in German)

• Denmark: Report on Competition in Danish Retail Banking MarketIn April 2013, the Danish Competition and Consumer Authority (DCCA) published a report investigating competition in the Danish retail banking market. The main conclusion is that there is significant room for improvement of price competition on this market. Banks are not sufficiently challenged on prices – neither by other banks nor by consumers.

The retail banking market plays a special role in the Danish economy and for individual consumers and companies. A retail banking sector that functions well ensures available and easily distributed liquidity and capital to companies and consumers that need it. This is essential to ensure growth in the economy. It is therefore important that the retail banking market is allocating ressources effectively and that competition is intense.

In general, companies use a variety of parameters when they compete on a market, e.g. price, quality, service, advising etc. If competition is effective, price is one of the most important means of competition. Intensive price competition forces banks to keep costs low in order to be able to maintain or attract new customers by offering them a favourable deal at a low price. When price competition is weak there is no direct pressure to keep costs low. This means that costs and prices will be higher compared with a situation where price competition is effective.

According to the report, the Danish banks focus on other parameters than price when competing. Nearly four out of five Danish banks declare that ’the relationship between the customer and the banking consultant’ is an important parameter, and more than half of the banks find ’advise from the banking consultant to the customer’ and ’the image of the bank’ to be important parameters. These are usually

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high-cost parameters if the bank wants to differentiate itself from other banks on the market.

When consumers focus on price and quality and are active on the retail banking market (i.e. they are analysing the market, comparing offers, negotiating with the banks and are willing to switch to another bank), they put pressure on the banks to offer favourable deals at low prices. This is likely to increase welfare for all consumers and encourage innovation and growth in the economy.

However, it appears from the report that only few consumers are active on the retail banking market. When purchasing a loan from the bank, nearly four out of five Danish consumers only contact one bank – the one they normally use – to get an offer. Nevertheless, three out of four consumers state that they are sure that they benefited from the best conditions. Furthermore, most consumers do not negotiate prices or terms with the bank before accepting an offer for a loan.

The relationship with the bank consultant is especially important for the consumers’ behaviour and choice on the retail banking market.

The DCCA recommends intiatives in five different areas to improve consumer activity and competition on price on the retail banking market in Denmark. Some of the initiatives will ensure that the consumers can easily and quickly take more active and enlightened decisions without having to rely on the bank or bank consultant. The English summary includes a short description of the recommendations along with the main conclusions of the report.

See full text (in Danish) and summary (in English)

• Finland: Legislative Proposal to increase Competition Neutrality between Public-Sector and Private-Sector Companies

On 11 April 2013, the Finnish Government has published a draft law aimed at ensuring competition neutrality between public-sector and private-sector market operators. The main purpose of this is to establish the national control mechanism, which would provide a tool for ensuring a level playing field between private and public market operators.

The law would potentially cover wide range of market behaviour of public bodies that distort competition e.g. cross-subsidisation or predatory practices. The law is part of the Finnish Government’s broader programme to safeguard a level playing field for private and public sector businesses and reduce legislative obstacles for competition in various fields (see ECN Brief 5/2012 ).

According to the draft law, the Finnish Competition and Consumer Authority (FCCA) would receive powers to supervise competition neutrality between public-sector and private-sector business activities. When the central government, a municipality, a federation of municipalities or a unit under the control of a municipality operates under an arrangement that distorts or prevents, or might distort or prevent, sound competition on the market, the FCCA should, preferably by way of negotiation, put an end to the arrangement endangering competition neutrality. If the negotiations remain unsuccessful, the FCCA could prohibit the activities or impose conditions that would ensure a neutral operating environment on the market. The FCCA would also have the right to impose a conditional fine to enforce the prohibition or the conditions. Unless otherwise ordered by the Market Court, the prohibition or conditions imposed by the FCCA would have to be observed. It is foreseen that an appeal lodged against the FCCA’s decision has no suspensive effect, unless the Market Court decides otherwise.

The proposal contains a de minimis provision i.e. the FCCA would not have to examine the request for action concerning competition neutrality if the arrangement has only a minor impact on a healthy and sound competition environment. It is also foreseen that if the operation in question relates to public sector activities which are directly based on legal requirements, the new provisions may not be applicable.

As for the investigative powers of the FCCA, the provisions of the current Competition Act on the obligation for an undertaking to provide information would also apply to local and central government and municipal federations and units coming under their control.

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• France: The Autorité de la concurrence sets out Conditions for Network Sharing in Mobile Telephony Sector and considers Impact on Competition of national Roaming Arrangements between MNOs

Following a Government referral, the Autorité de la concurrence (the Autorité) issued an opinion on 11 March 2013 on the conditions under which network sharing and roaming agreements between Mobile Network Operators (MNOs) may be allowed.

Combining infrastructure-based competition with network sharing: the Autorité’s recommendations

The Autorité notes that, on the one hand, infrastructure-based competition should be encouraged, inter alia as a means to foster innovation and product differentiation. On the other hand, the launching of new generation ‘4G’ services requires heavy investments and MNOs may seek to share investment costs to allow for a faster roll out and a better coverage. Moreover, an alternative to sharing, which may consist in the merger of two competitors, is neither desirable nor, probably, even possible, as the market is already significantly concentrated with 4 MNOs. However, monitoring is necessary to ensure that such network sharing, if applied, does not support collusive behavior nor drive competitors which are not party to the agreement out of the market.

Relying on the European Commission’s Guidelines for the assessment of horizontal cooperation agreements, the Autorité considers that the impact of network sharing agreements on competition should be assessed according to the following three main criteria:

• The degree of cooperation between the parties to the agreement, which depends on the nature of the infrastructure shared. Frequency sharing between MNOs is seen in particular as limiting significantly their ability for differentiation in terms of quality or coverage.

• The market power thus acquired by the MNOs which are party to the agreement and the ability of other market participants to respond either individually or collectively.

• The characteristics of the areas covered by the agreement and in particular their population density: cost savings are less likely in densely populated urban areas than in rural areas with a sparse population.

National roaming agreements between MNOs: pro-competitive, provided they are transitory

National roaming agreements help lower barriers to entry for new entrants, especially MNOs which have entered the market later on and require some time to roll out entirely their network, pending which they are at a competitive disadvantage vis-à-vis incumbent MNOs. The new entrant Free thus benefited from roaming rights on its competitors’ 2G and 4G networks, under the current regulatory framework. Beyond these regulatory obligations, a 3G roaming agreement was also concluded between Free and Orange, one of the three incumbent MNOs, following a 2010 Opinion of the Autorité where it set out that roaming agreements were a condition for effective competition by a 4th MNO (see Opinion 10-A-13). Free is on the other hand required, under its 3G license, to provide near-full coverage of the French population through its own network by 2018.

The Autorité notes, relying in particular on EU case-law (General Court, O2 (Germany), 2 May 2006, T-328/03), that such roaming agreements must be temporary as they also constitute a risk for competition: service differentiation (e.g. network quality) is reduced between the parties and, moreover, the market structure may be unbalanced, especially where the host operator is the leading operator on the market. The Autorité thus issued recommendations stressing the need to proportion the duration of Free’s 3G roaming agreement to the timeline for its 3G roll out obligations, to limit 2G roaming rights so as not to allow Free to rely on these to manage ‘overflow’ from its 3G customers and to prevent 4G roaming rights from being used to remedy Free’s failure to obtain in open bids the most appropriate (low) frequencies to roll out coverage in densely populated areas.

See press release (in English and French)

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• France: The Autorité de la concurrence launches Sector Inquiries into Distribution of Medicinal Products and Interregional Coach Transport

In February 2013, the Autorité de la concurrence (the Autorité) launched two ex officio sector inquiries into, the distribution of medicinal products and interregional coach transport services, respectively.

The first sector inquiry looks at the distribution of medicinal products at the upstream (laboratories), intermediate (wholesaler distributors) and downstream (pharmacies) levels. Its scope is distinct from the European Commission’s 2009 sector inquiry into the pharmaceutical sector which dealt with the reasons for delays in the entry of generic medicines to the market and the apparent decline in innovation as measured by the number of new medicines coming to the market.

In this inquiry, the Autorité intends to examine competitive factors at play throughout the distribution chain:

• At the upstream level, the Autorité will look at the pharmaceutical laboratories’ pricing policy for all types of medicinal products, i.e., whether their price is regulated (prescription drugs) or not (non prescription). Guidance towards laboratories to allow for the self-monitoring of their behaviour in the context of generic entry will also be considered.

• At the intermediate level, the Autorité will look at the wholesale distributors’ role in the distribution cycle, the difficulties they face in reconciling public service obligations on the one hand and competition from laboratories developing direct sales to pharmacies on the other. Moreover, the competitive pressure they exert as importers and/or exporters will be carefully assessed.

• At the retail level, the Autorité will look at the pharmacies’ role in promoting generics, the competitive dynamics with regard to the sale of non price-regulated products and the impact of online sales; the latter issue was touched on by the Autorité in an opinion of December 2012 (see Opinion 12-A-23 in French only), emphasizing concerns about the proposed transposition in France of Directive 2011/62/EU on the grounds that it unduly restricts the scope initially foreseen for online sale of medicinal products.

The second sector inquiry covers the interregional coach transport sector, a sector where conditions for entry were recently eased and which is currently undergoing expansion. The inquiry will address in particular the issue of the remaining hurdles under the authorization scheme which is still in place, as well as the competitive advantages of multimodal transport companies, including the case of the incumbent rail operator which holds a de facto monopoly on rail transport, operates under local delegations numerous urban transport routes, manages train stations and parking lots and has recently entered the interregional coach transport sector through its iDBus service which competes with leading company Eurolines.

The Autorité will organize public consultations for both inquiries, in the summer (medicinal products) and in autumn (interregional coach).

See press release on the distribution of medicinal products (in English and French) and press release on coach transport (in English and French)

• Lithuania: The Competition Council announces Consumer Benefits of its 2010–2012 Activities In March 2013, the Competition Council of the Republic of Lithuania (Konkurencijos taryba, KT) published an impact assessment of its activities on consumers for the period 2010–2012. This is the second time since 2011 that the KT has carried out such an impact assessment. The results demonstrate that the benefits for consumers resulting from the KT’s activities are more than 12 times higher than its annual budget.

The mission of the KT is to safeguard effective competition for the benefit of consumers. In implementing its mission, the KT aims at creating direct financial benefits for consumers.

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As was previously done, the evaluation of the impact of the KT’s activities was conducted in accordance with the methodologies established by the world’s top competition authorities and the most recent academic literature. The basis for the assessment was the methodology used by the Office of Fair Trading of the United Kingdom.

In line with the original 2011 initiative to inform society of the benefits of the KT’s work, the objective of the impact assessment remains twofold. Firstly, this exercise is a means of providing external accountability, which enables society to assess the activities of the KT. Secondly, having set its work priority and the prioritization principles in 2012 (see ECN Brief 4/2012), the KT refers to the benefit calculation methodology when deciding on whether to open an investigation, in order to bring the highest benefits to consumers.

The impact assessment covers both direct and indirect benefits to consumers created by the KT during the period between 2010 and 2012. Although the assessment has been based on conservative assumptions, the findings have shown that the total consumer benefits resulting from the KT’s work constitute between LTL 45 720 000 (approximately € 13 241 427) and LTL 268 370 000 (approximately € 77 725 324) depending on whether only direct financial benefits to consumers are assessed or whether fines imposed and the benefits resulting from the deterrent effect of the KT’s activities are also considered. The comparison of these figures with the 2010–2012 KT’s budget of LTL 10 900 000 (approximately € 3 156 858) (on average € 1 042 632 per year) shows that the direct benefits provided to consumers represent more than 12 times the KT’s annual budget.

See the Impact assessment (in English)

• The Netherlands: 2012 NMa’s Outcome is € 251 000 000The 2012 NMa’s Outcome is estimated at € 251 000 000, which amounts to € 33 per household.

Each year the Netherlands Competition Authority reports on the outcome of its actions. These reports concentrate on the estimated welfare benefits for consumers/customers. The 2012 Outcome is based on the NMa interventions in markets through merger control, antitrust and regulation. The publication of this Outcome is primarily meant to give an account to the Dutch society of the benefits of NMa’s activities.

Since 2002, the outcome ranges between € 250 000 000 and € 600 000 000 per year. The outcome for 2012 is defined as the average of the first-year effects for 2012, 2011 and 2010. The first-year effects are the (price) effects of competition policy enforcement actions (e.g. a lower price after a decision in a cartel case or a prevented price rise after a blocked anti-competitive merger) in which the duration of the effect is set at one year. For 2012, 11 merger cases are taken into account (one prohibition decision, two withdrawals during the proceedings and eight remedies decisions), four cartel decisions and three commitment decisions. In total, the first-year effect for 2012 of the NMa is € 246 000 000.

Besides these quantifiable effects, other effects exist which cannot be directly quantified. A recent study undertaken by SEO Economic Research (2011) has shown that for every sanction decision taken by the NMa there are almost five cases in which, unbeknownst to the NMa, a prohibited act has been terminated or modified in response to legal advice on competition law. Therefore, the Outcome of the NMa interventions as presented in this paper should be considered as an (estimated) lower limit.

Access from the NMa’s website to the Report: and the Publication (both in Dutch only)

• The Nordic Competition Authorities: New Joint Report: A Vision for Competition – Competition Policy towards 2020

On 5 March 2013, the Nordic Competition Authorities published their tenth joint report ‘A Vision for Competition – Competition Policy towards 2020’. The report aims to highlight how effective competition policy and effective competition authorities can contribute to address future challenges to economic growth and welfare in the Nordic countries. A strong message from the report is that there is considerable

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scope for strengthening the relevant legal instruments and making competition policy more effective.

The Nordic Competition Authorities have a long history of close cooperation in the field of competition policy. Collaborating and learning from each other´s experiences is important when it comes to preparing and equipping the Nordic authorities with the right policy tools and powers to support the effectiveness of competition law enforcement. For example, the authorities have jointly produced a number of reports which have dealt with competition in various sectors such as telecommunications, energy, banking and the food market. This time the focus is broader and aims at establishing a vision for competition, forming a valuable basis in the debate on how competition policy can, and should, be developed in order to better contribute to a positive socio-economic development.

The report demonstrates how competition and competition policy can contribute to economic growth, spur innovation and favour quality and efficiency increases within the public sector. However, in order for competition policy to achieve these objectives, it must be effective. In this regard, the report highlights a number of areas which are central to effective competition policy implementation. First, competition authorities must be equipped with the adequate tools and legal powers in order to effectively enforce competition law. By comparing the Nordic Competition Authorities’ investigative and decision-making powers with those of the European Commission, the report identifies both a need and scope for strengthening the legal instruments that can make competition policy more effective in the Nordic countries in the future. A second central aspect is an authority’s ability to evaluate its own work in order to promote continuous improvement and accountability. Here, the report emphasises that even though the effects of competition policy may not be easily measured in terms of an aggregate economic value, the Nordic Competition Authorities’ work generate positive welfare effects. Finally, another important area is how effective competition policy can contribute to maintain and improve the Nordic countries’ innovation climate and capability. In this area, the Nordic Competition Authorities recognise that they have an important role to play in facilitating innovation through the promotion of a competitive climate, including regulatory reforms that facilitate market entry and enhance competition.

See the report (in English)

Press spokesperson: Jimmy Dominius, Press Officer, tel. +46 (0)8 7001580; John Söderström, project manager, tel. +46 (0) 8 700 1660.

• Romania: The Competition Council launches Sector Inquiries into Pharmaceutical Market and Electronic Communication Services

On 19 March 2013, the Romanian Competition Council (RCC) opened by an Order of its President a new sector inquiry to assess possible malfunctions of the pharmaceutical market and to make recommendations to address this.

The inquiry will endeavour to examine entry barriers for generics on the market and to evaluate the level of penetration of these medicines. It will describe the model of distribution which is currently used. Lately, many pharmaceutical producers have expressed their intention to switch from the traditional model to a new one involving the producers directly or a reduced number of distributors

A sector inquiry undertaken by RCC in 2011 found that innovative medicines were prevalent on the market, although generic medicines with lower prices were expected to gain market share. (see ECN Brief 3/2011).

On 2 April, the RCC opened another sector inquiry into electronic communication services provided either as a bundled service (Multiplay services) or separately. Multiplay services refer to different types of packages combining two or more electronic communication services, e.g. a package combining telephony, television and Internet is generally known as triple-play.

The RCC encourages active cooperation with all stakeholders to collect feedback from the markets concerned.

Press information (in English)

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• Sweden: Proposals of Swedish Government’s Inquiry regarding Enhanced Effectiveness of Competition Law Enforcement

On 8 March 2013, the results of the Inquiry entitled “Enhanced Effectiveness of Competition Law Enforcement” were presented to the Swedish Government. This follows the launch by the Swedish Government of an inquiry into certain aspects of the Swedish legislation governing the enforcement powers of the Swedish Competition Authority (SCA) on 26 April 2012 (See also ECN Brief 2/2012). The remit of the inquiry was to review part of the legislation that applies to the activities of the SCA with the purpose of making enforcement in the area of competition law more effective.

The results and proposals of the inquiry are as follows:

• The SCA should be able to order a suspension of its merger investigations. This could be applied when notifying parties have not complied with a request to provide information requested by the Authority to conduct the relevant analysis. It is therefore proposed to introduce a provision in the Competition Act enabling the SCA to “stop the clock” during merger investigations.

• A marker system should be introduced in the Swedish leniency programme. A marker system gives undertakings time to collect evidence and complete an application without risking that another undertaking would complete its application first. It is envisaged that the introduction of a marker system would lead to higher quality applications, which would facilitate further investigation by the SCA.

• It often takes several weeks to search through digital material copied during an inspection. The SCA has therefore chosen, in many cases, to make forensic copies of the material and then conduct indexing and searching of the material at its premises. This procedure has previously not been specifically regulated in the Competition Act. It is thus proposed to expressly regulate the SCA’s working procedure by allowing it to bring the material to its own premises.

• The Inquiry was also aimed at ascertaining whether the need for companies to cooperate with the SCA in the context of inspections is adequately provided for by the current legislation. The inquiry concluded that even though the Competition Act does not contain any explicit requirement for undertakings to cooperate, the obligation can be considered to be implicit in the Act.

The results of the inquiry are published in Swedish (including an English summary) on the Swedish Government Offices webpage

• Hungary: New Units to increase Effectiveness of Cartel Investigations at Competition AuthorityIn view of investigating the most serious cartel cases in a more efficient manner, the Hungarian competition authority (Gazdasági Versenyhivatal - GVH) has set up a Cartel Detection Section as well a Cartel Investigation Team.

The Cartel Detection Section will be exclusively responsible for gathering all necessary information, including carrying out inspections. As to the initiation of competition supervision proceedings, it will be the task of the Cartel Investigation Team. The new units started operating on 15 April 2013.

OTHER ISSUES OF INTEREST

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The fight against cartels is regarded as highly important by the GVH as these practices have harmful effects on the whole economy, resulting in serious and direct consumer detriment, and an overall decrease in efficiency.

• Ireland: European Competition and Consumer DayThe Irish Competition Authority and the National Consumer Agency will host this year’s European Competition and Consumer Day in Dublin on 24 May 2013. The Conference is entitled Competition Policy and Consumer Protection: Challenges and Choices.

There are four sessions planned for the Conference. The opening session on critical issues for consumer protection and competition policy will include key note speeches from the Minister for Jobs, Enterprise & Innovation, Mr. Richard Bruton TD, the European Commissioner for Health and Consumer Policy, Mr. Tonio Borg and the Director-General for Competition at the European Commission, Mr. Alexander Italianer.

The second morning session will focus on the interaction between competition policy and consumer protection. The panel will include the Chairs of the OFT, the ACM and the FTC along with the Director General of the Danish Competition and Consumer Authority.

The first afternoon session will discuss issues surrounding collective redress for breaches of competition and consumer law. The final session will focus on Behavioural Economics and explore consumers’ use of information and decision making.

See further information here

Press spokesperson: Clodagh Coffey, Communications Manager (email: cc@tca.ie ; Tel: + 353 1 8045406)

• Austria: Prevention Policy in Competition Law: How Knowledge can avoid FinesOn 18 and 19 April 2013, the Austrian Federal Competition Authority (FCA) hosted a conference which, on the first day, was national in scope and addressed ‘Damit Wissen for Strafe schützt - How Knowledge can avoid Fines’ in cooperation with the Austrian Chamber of Commerce and with the participation of representatives of Austrian authorities, international organizations, as well as lawyers, entrepreneurs and members of the business community. On the second day, an international conference with the participation of 16 different national competition authorities (e.g, Bulgaria, Croatia, Estonia, Hungary, Lithuania, Slovakia, Russia, Turkey, UNCTAD etc) was held on ‘Prevention and Compliance - International Knowledge Exchange’.

The main topics raised during the national conference were: How can effective prevention work? How can employees be trained in order to avoid competition law infringements? If it is a matter of organizational culture, how can competition authorities help to implement a system for building awareness? What role do ‘compliance programmes’ play to prevent competition infringements? Do law firms really want to detect cartels and stop them or are they just advising how cartels can be hidden? What are the legal consequences of this kind of legal advice?

The conference was opened by Dr. Theodor Thanner, Director General of the FCA, who raised awareness on ethic and legal aspects of prevention. According to Dr. Thanner, a clear legal framework is essential to enhance knowledge and to prevent participation in unlawful horizontal or vertical conduct. Mr. Thanner stressed that compliance programmes should not be considered as mitigating circumstances when they have been used to hide agreements.

The first panel focused on the ‘theory of prevention’. Academics discussed the game theory, ethics, the principles of human behaviour concerning competition/rivalry in general, the tendency to collaborate and the motivation to act in accordance with the law as opposed to infringing it.

During the second session, the speakers and guests debated human and organizational behaviour from a more practical point of view, the deterrent effect of fines and the role and consequences of compliance programmes. They underlined the importance of role models, case studies and understandable guidelines

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to implement lawful behaviour.

In the last session international guests from UNCTAD, IACA and the European competition authorities exchanged views on what competition agencies can do to promote competition in the context of prevention and to what extent prevention campaigns are possible in practice.

The international conference on the second day was also opened by Dr. Thanner who explained the measures put into place by the FCA to prevent competition infringements. The key note speaker Mr Francois Souty spoke about ‘Compliance policy as a tool for law enforcement’. He mentioned the origin of compliance in EU and US law, the different tools and the main elements of compliance.

This was followed by a panel discussion with speakers from the University of Vienna, UNCTAD, the Bulgarian competition authority and the Croatian competition agency on ‘Deterrent Competition Law Enforcement - Ways of Implementation’. They particularly underlined that enforcement and compliance programmes are part of a portfolio of tools which can be used flexibly but stressed that these tools require permanent attention and resources. In the afternoon, the FCA organized three different workshops on leniency and compliance, settlements and compliance and international cooperation/remedies and compliance. Participants of different nationalities discussed how these tools are implemented in their countries which made these workshops particularly interesting.

See further information on the conference (in German)

• Germany: 16th International Conference on Competition in Berlin on 20 to 22 March 2013On 20 to 22 March 2013, the Bundeskartellamt (BKartA) held its 16th International Conference on Competition (IKK) in Berlin.

The Conference was launched by opening statements of Andreas Mundt, President of the BKartA, Dr. Phillip Rösler, Federal Minister of Economics and Technology, Günther H. Oettinger, EC Commissioner for Energy and Dr. Karl-Ludwig Kley, Chairman of the Executive Board of Merck KGaA and President of the German Chemical Industry association.

Thereafter, heads of competition authorities, antitrust lawyers, academics, politicians, representatives of internationally active companies and other high-ranking participants engaged in fruitful discussions in four different panel sessions.

The following topics were discussed:

• The political content of antitrust: The panel discussion focused on the relationship between Policy and Competition Authorities as well as the social standards competition law should consider.

• Different systems-different rights? ‘Due Process’ in a global environment:The debate centred on the effects of different procedural rights in different jurisdictions on international competition and companies’ strategies.

• Mergers: The More Economic Approach revisitedThe panel discussed the opportunities and challenges of economic evidence in proceedings.

• Competition and the digital economy: Fast innovation – traditional toolsThe activities of competition authorities in digital markets were discussed by reference to concrete cases

The IKK was launched by the BKartA in 1982 in Berlin and has since brought together competition experts from all over the world every other year. This year around 350 participants from more than 60 countries attended the conference.

See further information on the conference (in English)

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• Poland: Report on the 12th Annual ICN ConferenceThe Polish Office of Competition and Consumer Protection (UOKiK) hosted the 12th Annual Conference of the International Competition Network (ICN), which was held in Warsaw, from 23-26 April 2013. The event was attended by more than 500 representatives of competition authorities (CAs), law offices and academics from all around the world.

The conference was opened by Mr Bronisław Komorowski, the President of the Republic of Poland who emphasised that ‘Competition is to serve consumers. Well-informed consumers are the engine of economic changes, because their choices stimulate the economic growth and increase innovation’. Subsequently, welcoming addresses were delivered by Mrs Małgorzata Krasnodębska-Tomkiel, President of UOKiK and M. Eduardo Pérez Motta, Chair of the ICN and President of the Mexican Federal Competition Commission. In her speech, the President of UOKiK highlighted the tremendous benefits the ICN has brought to its members and praised the Network on its work and advocacy efforts for the adoption of best standards and procedures in competition law and policy.

During the first day of the conference, UOKiK organized a special opening session entitled: ‘Competition at the Top of the Global Agenda – the Road to the Economic Welfare?’. The Vice-President of the European Commission and Commissioner for Competition, Mr Joaquín Almunia gave the keynote speech, while high-level experts in the field tackled the pros and cons of embedding competition principles in a broader policy debate at the national and international level. This was followed by a plenary session which was devoted to the issue of ‘Working with Courts and Judges’. Following established tradition, UOKiK as the host of this year’s ICN conference, had prepared a special project on a selected topic, i.e. the relationship of CAs with the judiciary, with particular focus on three main areas of cooperation: presentation of decisions issued in competition proceedings in courts, presentation of economic evidence and other aspects of the dialogue with courts and judges. On the basis of responses to a questionnaire send out to ICN Members, the project team had drafted an executive summary, containing results and conclusions of this analysis, which was presented by the President of UOKiK during the above mentioned plenary session.

On the same day, the Advocacy Working Group discussed competition advocacy and reforms at its plenary session and during breakout sessions continued the debate on ‘Working with Courts and Judges’ including the benefits of such cooperation, competition culture and competition assessment projects. The day ended with the first ICN’s Annual Awards Show hosted by Mrs Barbara Schulze from the Bundeskartellamt and by Mr William Kovacic from George Washington University, which included inter alia awards for the most informative method of communication and the best new method of communication.

The second day of the ICN conference started with the plenary session of the ‘Agency Effectiveness Working Group’ in which the discussion revolved around the Investigative Process. The breakout sessions complemented this session with a debate on the tools and means of transparency used in the investigative process, as well as knowledge and human resources management at Competition Agencies.

On the same day, the Merger Working Group plenary and breakout sessions took place. At the plenary session, the speakers examined the trends and policy issues in economic analysis in merger review. The breakout sessions tackled evaluation of economic evidence, public interest objectives in merger review, challenges and opportunities of merger remedies and procedural aspects of agency cooperation in merger review. The afternoon on the other hand, was dedicated to the Unilateral Conduct Working Group, which devoted its plenary and breakout sessions to exclusive dealing, as well as unilateral standards in developing countries and emerging markets and justifications and defences for unilateral conduct.

As it is established tradition, one special session of the ICN conference focused on competition enforcement and policy in a particular region. Taking into account Poland’s engagement in the EU Eastern Partnership Initiative, UOKiK decided that it would be valuable to dedicate one panel to the countries of Eastern, South Eastern Europe and Caucasus.

The last day of the ICN conference was dedicated to the topic of cooperation and effective detection and the elimination of cartels. The Cartel Working Group presented at its plenary session the new chapter of the anti-cartel enforcement manual on ‘International cooperation and information sharing’ and during its breakout sessions analyzed cooperation between competition authorities in the context of leniency,

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regional cooperation and challenges and future work that lay ahead in this field. The other ICN Working Groups joined the discussion by conducting breakout sessions on cooperation in merger and unilateral conduct enforcement.

Overall, the conference was considered a great success. When closing the conference, the President of UOKiK stated that ‘It was truly a great honour for UOKiK to host such distinguished speakers and guests, who have come from all over the world to share their knowledge and experience in the field of competition protection’. The next ICN conference will be held in Marrakesh in 2014 and will be hosted by the Morocco Competition Council.

See press release (in English) and Final Remarks (in English)

• Romania: European Competition Authorities’ Plenary Meeting and Conference presenting the Romanian Competition Authority’s Annual Report

On 30-31 May 2013, the Romanian Competition Council (RCC) will host the Plenary meeting of the European Competition Authorities (ECA) where representatives of the authorities from the European Economic Area will have the opportunity to share experience and information on competition-related issues.

The ECA meeting will be preceded in the morning by the RCC’s International Conference presenting its yearly report on activities in 2012, entitled ‘Accomplishments and perspectives’. The conference will continue with two roundtables. The first roundtable entitled ‘Pro-competitive legislation for a predictable business environment’ is focused on competition advocacy and targets the communication with the Parliament, Government and business environment. The following roundtable regards competition developments in the retail food sector. Prestigious officials from international organizations, European and Romanian public bodies, including representatives of competition authorities, will participate as speakers or guests of honour.

The ECA meeting will focus on the latest developments in terms of competition policy and enforcement, presenting the most relevant cases recently investigated by competition authorities. Mr Alexander Italianer, Director-General for Competition at the European Commission, will present the latest developments in the competition field on behalf of the European Commission.

On 31 May, several ECA panels will be organized to discuss issues regarding competition and regulation in the health sector, transparency as an essential tool for the sound and credible application of competition law and minority shareholding.

See further information on these events (in English)

• European Commission: Successful second European Competition ForumThe second European Competition Forum was held in Brussels on 28 February 2013. More than 500 high-level participants attended, from national ministries and local government, European institutions, competition authorities, business and consumer organisations, think tanks, and international organizations.

Commission Vice-President Joaquín Almunia opened the Forum with a wide-ranging analysis of the role competition policy can play at this delicate juncture for Europe, saying ‘I am convinced that ensuring competition in the Single Market is a pre-condition to increase the productivity of our economy’. He pointed out that ensuring keen competition in the internal market ‘does not cost a cent and works like a structural reform whose benefits can be felt over a long time’.

Prime Minister Mario Monti in his keynote speech also stressed that more needs to be done in Europe to promote competition and leverage the potential of the Single Market: ‘I have always been a fervent believer that competition policy and the completion of the European Single Market are key for delivering more economic activity, lower prices, and more jobs’. He pointed out that according to the IMF, the

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• Finland: Management appointed at Finnish Competition and Consumer AuthorityOn 20 March 2013, the Government made the following appointments to the Finnish Competition and Consumer Authority (FCCA): Juhani Jokinen, LL.M., trained at the bench, as Director General; Timo Mattila M.Sc. (Tech.), M.Pol.Sc. as Director of the Competition Affairs; and Päivi Hentunen, LL.M. as Director of Consumer Affairs and Consumer Ombudsman. All three were appointed as of 1 April 2013 for a term of seven years.

All the appointees have held their aforementioned positions on a temporary basis since the beginning of this year. Juhani Jokinen was director of the programme for promoting healthy competition at the Ministry for Employment and the Economy and was also employed at the Finnish Competition Authority, as Director General for over seven years, and in other management positions for over 11 years.

Timo Mattila and Päivi Hentunen also have experience in management positions at government level: eight years with the Finnish Competition Authority and 18 years with the Finnish Consumer Agency, respectively. They also contributed significantly to the setting up of the FCCA.

The FCCA began operations on 1 January 2013. Formed by merging the Finnish Competition Authority and the Finnish Consumer Agency, the new agency has the remit of ensuring healthy and functioning markets. The FCCA has a budget of €11 000 000 for 2013 and about 150 employees.

• United Kingdom: The Office of Fair Trading appoints Chief EconomistOn 12 March 2013, the Office of Fair Trading (OFT) announced the appointment of Chris Walters as Chief Economist, succeeding Amelia Fletcher who will leave shortly to take up a new position.

PERSONALIA

competition policy reforms his government made in Italy may lead to a 10% increase in GDP in the long run.

The first panel dealt with the role of the State in the global economy, and speakers discussed the need to fight temptations to relax competition rules in times of economic downturn and to resist calls for protectionism. They agreed on the importance of designing State aid policy so that it helps to open up markets and spur innovation.

The relationship between competition and innovation was the focus of the second panel, with thought-provoking discussions on the need for interoperable systems, open access, and the pressing need to nurture future generations of innovators by fighting youth unemployment. Improvements in the patent protection system and easier access to finance for entrepreneurs were also called for.

The last panel, on the Single Market for financial services and competition policy, analysed the lessons learnt by European authorities during the financial crisis. The wide-ranging discussion touched on the new regulatory framework for financial services, the issue of State aid to banks in distress, and alternate ways to fund investment, commerce and industry, and create jobs, particularly in relation to SMEs.

See further information on the European Competition Forum (in English)

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Chris Walters, who has been appointed on temporary promotion, starts his new role in April and will report to Chief Executive Clive Maxwell. He will head the Office of the Chief Economist, which delivers the OFT’s economic policy, research, thought leadership and evaluation, and supports its enforcement and markets work. In addition, Chris Walters will be Head of Profession for all economists working in the OFT.

Currently Director of Economics in the Goods and Consumer Group, Chris Walters has been at the OFT since 2007, when he joined as Assistant Director (Economics), Mergers. During this time he has overseen economic analysis for numerous merger, market, competition and consumer investigations. Prior to the OFT, Chris Walters worked at the Competition Commission, in private practice as an economic consultant, and as an academic.

He succeeds Amelia Fletcher who is leaving the OFT at the end of this month, to join the University of East Anglia as a Professor of Competition Policy. Amelia Fletcher joined the OFT as Chief Economist in 2001. In this role she developed the OFT’s series of economic research papers and evaluation programme and has been an advocate for economics in competition and consumer policy, both internally and externally.

See press release

• United Kingdom: Office of Fair Trading announces new Senior AppointmentsOn 16 April 2013, the Office of Fair Trading (OFT) announced the appointment of three new senior directors to lead its work in cartels and criminal enforcement, policy and consumer credit.

• Stephen Blake has been appointed Senior Director of Cartels and Criminal Enforcement (CCEG), on temporary promotion. He will also be a member of the OFT’s Policy Committee. Stephen Blake has extensive experience of international competition law enforcement, particularly in the field of cartels. He joined the OFT in September 1998 as a competition lawyer in the Legal Division and moved to the Cartels Group as a Deputy Director in April 2005, following a two-and-a-half year secondment to the European Commission’s Directorate-General for Competition. Prior to joining the OFT, he worked as a solicitor in private practice.

• Sheldon Mills has been appointed as Senior Director of Policy, on temporary promotion. He will be responsible for the OFT’s competition, markets and consumer policy work. Sheldon Mills will also be a decision maker in Phase I mergers and responsible for the operation of the OFT Policy Committee, which he will be a member of. Sheldon Mills previously led the OFT’s Mergers Group for the past three years. Prior to joining the OFT in 2010, he worked as a solicitor in the private sector counseling a range of clients in merger and antitrust matters involving antitrust agencies worldwide in private practice.

• David Fisher was appointed Senior Director of Consumer Credit and Anti-Money Laundering on 1 April 2013, on temporary promotion. He joined the OFT in 2001 after 11 years with the Competition Commission. David Fisher has held various senior posts within the OFT including, most recently, Director of Consumer Credit and Anti Money Laundering.

See press release