Enforcement
² MOFCOM imposes penalty on Dade Holding for failure to notify its acquisition of Jilin Sichang
On April 21, 2016, Ministry of Commerce (“MOFCOM”) announced the administrative sanction decision on Dade Holding for failure to notify a 50% stake acquisition of Jilin Sichang Pharmaceutical.
In June, 2011, Dade Holding’s wholly owned subsidiary Shangdong Buchang Pharmaceutical signed an agreement with a subsidiary of Sihuan Pharmaceutical Holding Group to acquire a 50% stake in Jilin Sichang in two steps. In January, 2015, Dade Holding finished change of the business registration. Upon investigation, MOFCOM concluded that Dade Holding violated the Antitrust Mono-monopoly Law (“AML”), and had implemented concentration of undertaking without notification.
Based on investigation and assessment, MOFCOM determined that the transaction would not eliminate or restrict competition, and Dade Holding filed voluntarily after the JV was established and cooperated with MOFCOM. Therefore, MOFCOM imposed a fine of RMB 150,000 on Dade Holding. >>Read More Back
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² MOFCOM imposes penalty on New United Group and Bombardier Transportation Sweden for failure to notify their Joint Venture
On April 21, 2016, MOFCOM announced the administrative sanction decision on New United Group and Bombardier Transportation Sweden for failure to notify their Joint Venture.
On February 5, 2015, New United Group and Bombardier Transportation Sweden signed the agreement to set up a Joint Venture that would operate in the urban railway transportation signal system and tram signal system businesses. They respectively held 50% stakes in JV, and obtained a business license on June 11, 2015. Upon investigation, MOFCOM concluded that New United Group and Bombardier Transportation Sweden violated AML, and had implemented concentration of undertaking without notification.
Based on investigation and assessment, MOFCOM determined that the transaction would not eliminate or restrict competition, but acts of the subject undertakings were deliberate and Bombardier Transportation Sweden had already been penalized once before for a similar transgression. Therefore, MOFCOM imposed fines of RMB 300,000 on New United Group and RMB 400,000 on Bombardier Transportation Sweden. >>Read More Back
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² MOFCOM imposes penalty on Beijing CNR Investment and Hitachi for failure to notify their Joint Venture
On April 21, 2016, MOFCOM announced the administrative sanction decision on Beijing CNR Investment and Hitachi for failure to notify their Joint Venture.
On March 15, 2013, Beijing CNR Investment, Hitachi and Hitachi China of Hitachi’s subsidiary signed the agreement to set up a Joint Venture that would operate in the railway transportation signal system business. Beijing CNR Investment, Hitachi and Hitachi China respectively held 51%, 39% and 10% stakes in JV, and obtained a business license on March 28, 2014. Upon investigation, MOFCOM concluded Beijing CNR Investment and Hitachi violated
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Disclaimer: This bulletin is provided for informational purposes only and is not legal advice. The transmission and receipt of information contained in the document do not form or constitute an attorney-client relationship.
AML, and had implemented the concentration of undertaking without notification.
Based on investigation and assessment, MOFCOM determined that the transaction would not eliminate or restrict competition, and the subject undertakings filed voluntarily after the JV was established and cooperated with MOFCOM. Therefore, MOFCOM imposed fines of RMB 150,000 on Beijing CNR Investment and Hitachi respectively. >>Read More Back
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² MOFCOM unconditionally clears 94 concentrations of undertakings in the second quarter of 2016
On July 5, 2016, MOFCOM issued the list of 94 unconditionally cleared concentrations of undertakings in the second quarter of 2016. >>Read More Back
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² SAIC announces the administrative sanction decision against Qingdao Xinao Xincheng Gas Company for abuse of dominance
On May 17, 2016, State Administration for Industry and Commerce (“SAIC”) announced the administrative sanction decision made by Shangdong Administration for Industry and Commerce (“SDAIC”) on March 21, 2016 against Qingdao Xinao Xincheng Gas Company (“Qingdao Xinao Xincheng”) for abuse of dominance. SDAIC ordered it to cease illegal conducts immediately, confiscated RMB 52,308.49 in illegal gains, and imposed a fine of RMB 6,818,533.79 (3% of sales for the year 2013 in the relevant market).
In July, 2014, SDAIC received case tips reported by Qingdao AIC that the consumers complained Qingdao Xinao Xincheng had abused dominant market position to limit gas usage amounts of the consumers. Upon verification, SDAIC concluded that Qingdao Xinao Xincheng had imposed unreasonable additional transaction terms on consumers. On September 29, 2014, as authorized by SAIC, SDAIC docketed the case and conducted antitrust investigation against Qingdao Xinao Xincheng for abuse of dominance.
In the course of its investigation, SDAIC found that Qingdao Xinao Xincheng abused its dominant market position in the piping gas supply services, and forced the consumers to pay fees in advance without justifiable cause in the Chengyang district of Qingdao. Therefore, SDAIC determined that Qingdao Xinao Xincheng violated Article 17 of AML, which provides that an undertaking with dominant market position is prohibited from tying products or imposing any other unreasonable additional transaction terms in the course of a transaction without justifiable cause. >>Read More Back
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² SAIC announces the administrative sanction decision against 23 accounting firms for monopoly agreement
On May 17, 2016, SAIC announced the administrative sanction decision made by Shangdong Administration for Industry and Commerce (“SDAIC”) on March 21, 2016 against Shangdong Tianyuan Tongtai Accounting Firm and other accounting firms (“the subject undertakings”) for monopoly agreement. SDAIC ordered it to cease illegal conducts immediately, and imposed totaling fines RMB 1,982,665.
In 2014, SDAIC received public complaints that 25 accounting firms set up the association named Linyi City Certified Public Accountant Industry Self-Discipline Commission (“Linyi Self-Discipline Commission”), and reached a series of monopoly agreements. The subject undertakings restricted the normal operations of the accounting firms, and harmed competition order in the Linyi city. Upon verification, SDAIC concluded that the subject undertakings reached and implemented monopoly agreement. On September 3, 2014, as authorized by SAIC,
SDAIC docketed the case and conducted antitrust investigation against the subject undertakings.
In the course of its investigation, SDAIC found that between December 2012 and May 2013, 25 accounting firms of Linyi city reached a series of agreements that stipulated all business incomes of the competing undertakings should be combined and re-distributed. The redistribution had resulted in member-companies with lower market shares receiving subsidies from those with higher market shares. The subject undertakings deprived firms of business incomes, restricted competition and impeded fair competition of market economy. Therefore, SDAIC determined that the subject undertakings violated Article 13 of AML, which provides that competing undertakings are prohibited from allocating product sales markets or input procurement markets. >>Read More Back
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² SAIC announces the administrative sanction decision against Inner Mongolia Alxa Zuoqi Urban Water Supply and Drainage for abuse of dominance
On May 31, 2016, SAIC announced the administrative sanction decision made by Inner Mongolia Administration for Industry and Commerce (“IMAIC”) on July, 2015 against Inner Mongolia Alxa Zuoqi Urban Water Supply and Drainage Company (“the subject undertaking”) for abuse of dominance. IMAIC ordered it to cease illegal conducts immediately, confiscated RMB 300,741.00 in illegal gains, and imposed a fine of RMB 451,600.00 (2% of sales of relevant market in the preceding year).
In July, 2015, IMAIC received the report that the subject undertaking had abused dominant market position to restrict trade in the process of installing or replacing water meters and pipeline construction services. Upon verification, IMAIC concluded that the circumstance revealed in complaints were substantially true and reported to SAIC. On July 24, 2015, as authorized by SAIC, IMAIC docketed the case and conducted antitrust investigation against the subject undertaking for abuse of dominance.
In the course of its investigation, IMAIC found that the subject undertaking abused its dominant market position in the urban water supply and drainage services of Alxa Zuoqi BayanHotZhen, and forced consumers to buy designated water meter and other items with unreasonable additional transaction terms. The subject undertaking harmed fair competition order, and restricted autonomous option of the consumers. Therefore, SDAIC determined that the subject undertaking violated Article 17 of AML, which provides that an undertaking with dominant market position is prohibited from tying products or imposing any other unreasonable additional transaction terms in the course of a transaction without justifiable cause. >>Read More Back
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² MOFCOM attends the sixth St Petersburg international legal forum
From May 19 to 20, 2016, Han Chunlin, the Deputy Director of MOFCOM attended the sixth St Petersburg international legal forum held in St Petersburg, Russia, and delivered a speech on establishment of self-discipline mechanisms to promote market competition in the market that attract public concern such as automobiles and pharmaceutical. In addition, BRICS also signed a MOU on law and policy cooperation of competition agencies. >>Read More Back
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² Zhang Handong meets with IEEE delegation
On May 16, 2016, Zhang Handong, the Deputy Director of Price Supervision Bureau of National Development and Reform Commission (“NDRC”), met with Konstantions Karachalios, chief executive officer of the Institute of Electrical and Electronics Engineers (“IEEE”), and Don
Wright, chairperson of its patent committee. The IEEE delegates shared its newly revised standard patent policies, and elaborated on the relationship between such patent and antitrust policies. NDRC also briefed the visitors on its law enforcement practices and principles related to the abuse of intellectual property rights as well as its current progress in drafting IPR-related antitrust guidelines. >>Read More Back
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² NDRC attends antitrust communication events in Singapore
From May 9 to 10, 2016, Li Qing, the Deputy Director of Price Supervision Bureau of NDRC, attended antitrust communication events in Singapore, and held bilateral talks with Toh Hanli, the chairman of the Competition Commission of Singapore (“CCS”). They shared their latest developments in antitrust law enforcement and exchanged views on further cooperation in competition areas.
In addition, NDRC attended China-Singapore Antitrust Seminar, and delivered a speech on typical cases handled by the NDRC in recent years and implementation status of competition policies. NDRC also attended exchange events organized by Singapore-based companies, such as Temasek International and GIC Private, and law firms, such as Allen & Gledhill, Drew & Napier, and Rajah & Tann, and introduced China’s overall market environment and antitrust law enforcement conditions, and responded to relevant questions. >>Read More Back
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² DOJ files antitrust lawsuit to stop L.A. Times Publisher from acquiring competing Newspapers
On March 17, 2016, the Department of Justice (“DOJ”) filed a civil antitrust lawsuit seeking to block the acquisition by Tribune Publishing Company, publisher of the Los Angeles Times, of Freedom Communications Inc., publisher of the Register in Orange County, California, and the Press-Enterprise in Riverside County, California. Tribune was selected as purchaser of Freedom’s newspapers following a bankruptcy auction and would seek bankruptcy court approval of its acquisition on March 21.
According to the department’s complaint filed in federal district court in Los Angeles, the Los Angeles Times and the Register together account for 98 percent of newspaper sales in Orange County and the Los Angeles Times and Freedom’s newspapers together account for 81 percent of English-language newspaper sales in Riverside County. Tribune’s acquisition of its most significant competitor would give it a monopoly over newspaper sales in each county and allow it to increase subscription prices, raise advertising rates and invest less to maintain the quality of its newspapers. >>Read More Back
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² DOJ fines Omron Automotive Electronics Co. Ltd. for bid rigging on power window switches
On March 17, 2016, DOJ announced that Omron Automotive Electronics Co. Ltd had agreed to plead guilty and pay a $4.55 million criminal fine for conspiring to rig bids on power window switches installed in Honda Civics sold to U.S. consumers.
“Omron and its co-conspirators targeted the Honda Civic, one of the best-selling cars in the United States, to benefit themselves at the expense of Honda Civic owners,” said Assistant Attorney General Bill Baer of the Justice Department’s Antitrust Division. “Our investigation will continue to hold accountable companies and executives across the auto parts industry who chose to conspire rather than compete.” >>Read More Back
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² FTC chairwoman releases 2015 annual highlights
On April 6, 2016, Federal Trade Commission (“FTC”) Chairwoman Edith Ramirez released the FTC’s 2015 Annual Highlights, featuring some of the agency’s key efforts to benefit consumers and promote competition over the past calendar year.
“2015 was another busy year for the FTC fighting fraud and deception, as well as promoting competition and consumer choice,” Chairwoman Ramirez said. “In our law enforcement and policy work, we placed special emphasis on sectors of the economy that have the biggest impact on consumers, such as health care and the digital economy.” >>Read More Back
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² FTC and DOJ officials meet with officials of Chinese antitrust agencies
On April 13, 2016, FTC Chairwoman Edith Ramirez and Assistant Attorney General Bill Baer of the U.S. DOJ’s Antitrust Division participated in high level bilateral meetings with officials responsible for China’s three anti-monopoly agencies –Vice Minister Hu Zucai from NDRC, Assistant Minister Tong Daochi from MOFCOM, and Vice Minister Wang Jiangping from SAIC.
The meetings took place in Washington, D.C., and allowed the participating agencies to exchange information and views on antitrust developments and priorities. In addition, the agencies discussed the role of competition enforcement and advocacy in promoting innovation. >>Read More Back
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² DOJ sues two hospital systems for agreeing to allocate marketing territories
On April 14, 2016, the DOJ sued Charleston Area Medical Center (“CAMC”) and St. Mary’s Medical Center for unlawfully agreeing to allocate territories for the marketing of healthcare services, a practice that deprived consumers of the benefits of access to important information about competing healthcare providers. The department filed the civil antitrust lawsuit in the U.S. District Court for the Southern District of West Virginia, while simultaneously filing a proposed settlement that, if approved by the court, would resolve the lawsuit.
The complaint alleged that CAMC and St. Mary’s curtailed competition for years by agreeing to geographic limits on the marketing of competing healthcare services. CAMC agreed not to place print or outdoor advertisements in Cabell County, West Virginia, and St. Mary’s agreed not to place print or outdoor advertisements in Kanawha County, West Virginia. The agreement disrupted competition, deprived patients of information needed to make informed healthcare decisions, and denied physicians working for the defendants the opportunity to advertise their services to potential patients. >>Read More Back
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² Statement from FTC’s Bureau of Competition Director on the Court ruling granting a preliminary injunction in the Staples/Office Depot Merger
On May 11, 2016, FTC’s Bureau of Competition Director, Debbie Feinstein launched a statement granting a preliminary injunction in the Staples/Office Depot Merger.
“Today’s court ruling is great news for business customers in the office supply market. This deal would eliminate head-to-head competition between Staples and Office Depot and likely lead to higher prices and lower quality service for large businesses that buy office supplies.” >>Read More Back
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² FTC requires industrial gas suppliers to divest assets as a condition of merger
On May 13, 2016, two of the largest suppliers of gases, American Air Liquide Holdings, Inc. and Airgas, Inc., agreed to divest certain production and distribution assets to settle Federal Trade Commission charges that their proposed $13.4 billion merger likely would have harmed competition and led to higher prices in several U.S. and regional markets.
The companies would sell assets used to produce and supply seven types of industrial gas: bulk oxygen, bulk nitrogen, bulk argon, bulk nitrous oxide, bulk liquid carbon dioxide, dry ice, and packaged welding gases sold in retail stores. These gases are used in a number of industries, including oil and gas, steelmaking, health care, and food manufacturing, according to the complaint. For example, nitrous oxide, commonly known as “laughing gas,” is mainly used by dentists as an analgesic or sedative. Liquid carbon dioxide is used in food and beverage production, and its solid form, dry ice, has many applications, including shipping of frozen food and medical supplies, cooling of materials during production, and industrial blast cleaning. >>Read More Back
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² Officials from the United States, Canada and Mexico Participate in 2016 Trilateral Meeting in Toronto to discuss antitrust enforcement
On May 20, 2016, the heads of the antitrust agencies of the United States, Canada and Mexico met in Toronto, Canada, to discuss their ongoing work to ensure effective antitrust enforcement cooperation in our increasingly interconnected markets. The meetings were held among Chairwoman Edith Ramirez of the FTC, Principal Deputy Assistant Attorney General Renata Hesse of the DOJ’s Antitrust Division, Canadian Commissioner of Competition John Pecman and President Alejandra Palacios Prieto of the Mexican Federal Economic Competition Commission.
The discussions covered a wide range of topics, including recent developments, effective agency litigation, disruptive innovation, cooperation between agencies, and technical assistance. The agreements committed the antitrust agencies to cooperate and coordinate with each other to make their antitrust policies and enforcement as consistent and effective as possible. >>Read More Back
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² EC publishes report on functioning of Insurance Block Exemption Regulation
On March 17, 2016, EC published a report focusing on the functioning of the Insurance Block Exemption Regulation, which exempts certain types of cooperation in the insurance sector from EU antitrust rules under certain conditions.
The Insurance Block Exemption Regulation (“IBER”) came into force on 1 April 2010 and would expire on 31 March 2017. Before that day EC would need to decide on whether to renew the Regulation in its current form, modify it or let it lapse.
The IBER provided exemptions for agreements between insurers relating to (a) joint compilations, tables and studies and (b) co-insurance or co-reinsurance pools. Information gathered so far in the review process showed that the insurance sector needs to cooperate in the exchange of risk information and the co-(re)insurance of certain risks. At this stage, the Commission's preliminary view was that it is no longer necessary to maintain sector-specific block exemptions in this field. This was because the Guidelines on horizontal cooperation adopted in December 2010 offer guidance on how to assess the admissibility of this type of
cooperation. As to co-insurance or co-reinsurance pools both a study undertaken for the Commission and the information gathered in the IBER review so far show that only a limited number of companies benefit from the exemption. >>Read More Back
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² EC conditionally clears Statoil Fuel and Retail's takeover of Shell's Dansk Fuels
On March 23, 2016, EC approved under the EU Merger Regulation the proposed acquisition of Shell's Danish retail and wholesale fuels business, Dansk Fuels, by Alimentation Couche-Tard of Canada, which operates in Denmark under the Statoil brand via its subsidiary Statoil Fuel and Retail ("SFR").
The Commission's investigation focused on the Danish petrol station market (retail) and the wholesale markets of various refined oil products, where both Dansk Fuels and SFR were active. EC identified competition concerns with regard to the petrol station market, the wholesale markets for diesel, gasoline, light heating oil and heavy fuel oil in Denmark. EC had concerns that the remaining players would be unable to exercise a sufficient competitive constraint on the merged entity to avoid price rises at petrol stations and for wholesale customers. EC also had concerns that the merged entity would have had the ability and the incentive to shut out competing resellers or retailers from access to diesel, gasoline and light heating oil, because of its high market share on the upstream markets and the higher margins to be made on the downstream markets.
In order to address the Commission's competition concerns, SFR offered a comprehensive remedies package including but not limited to: divestment of a nationwide network of 205 Shell and SFR fuel stations; divestment of Shell's commercial fuels business and aviation fuel activities; a supply agreement with Dansk Shell (i.e. the Shell Refinery in Fredericia) valid until the end of 2016. EC found that the commitments addressed the competition concerns. The divestiture would create a national player which is capable of replacing the lost competitive constraint resulting from the transaction both at the national level and at the local level. >>Read More Back
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² EC fines Riberebro €5.2 million for participation in canned mushrooms cartel
On April 6, 2016, EC found that Spanish canned and fresh vegetable company Riberebro participated in a cartel to coordinate prices and allocate customers of canned mushrooms in Europe for more than a year and imposed a fine of €5,194,000 on the company.
EC adopted a settlement decision in June 2014 concerning the participation in this same cartel of Bonduelle, Lutèce and Prochamp. Riberebro chose not to settle and consequently the investigation continued under the normal cartel procedure. The cartel concerned canned mushrooms sold in tins and jars (i.e. not fresh or frozen mushrooms) for private label sales in the European Economic Area (EEA). The overall aim of the cartelists was to stabilise their market shares and stop a decline in prices. To achieve this, the cartel members exchanged confidential information on tenders, set minimum prices, agreed on volume targets and allocated customers among themselves. EC found that Riberebro participated in the cartel from 10 September 2010 until 28 February 2012.
The fine was set on the basis of the Commission's 2006 Guidelines on fines. Under the Commission's 2006 Leniency Notice, Riberebro received a reduction of 50% for cooperating with the investigation, and the final fine was €5,194,000. >>Read More Back
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² EC sends Statement of Objections to Google on Android operating system and applications
On April 20, 2016, EC informed Google and its parent company, Alphabet of its preliminary
view that the company had, in breach of EU antitrust rules, abused its dominant position by imposing restrictions on Android device manufacturers and mobile network operators.
The Commission's preliminary view was that Google had harmed both competitors and consumers by placing requirements on mobile manufacturers and operators to preinstall some of its own products and, in some cases, set them as default or exclusive options on handsets. They also alleged that the company had prevented manufacturers from selling smart mobile devices running on competing operating systems based on the Android open source code and given financial incentives to manufacturers and mobile network operators on condition that they exclusively pre-install Google Search on their devices.
According to EC, Google had about a 90% share in the European Economic Area (EEA) in the markets for general internet search services, licensable smart mobile operating systems and app stores for the Android mobile operating system, making it dominant. >>Read More Back
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² EC conditionally clears container liner shipping merger between CMA CGM and NOL
On April 29, 2016, EC cleared under the EU Merger Regulation the proposed acquisition of Neptune Oriental Lines (NOL) of Singapore by rival CMA CGM, a French shipping company with worldwide activities. The clearance was conditional upon NOL leaving the G6 liner shipping alliance.
The transaction leaded to the combination of two competitors in the container liner shipping business. CMA CGM was a founding member of the Ocean Three Alliance ("O3") whereas NOL was currently a member of the G6 Alliance. EC found that the merger, as initially notified, would have created new links between previously unconnected consortia in the O3 and G6 alliances. EC had concerns that these potential new links would have resulted in anti-competitive effects on two trade routes: (i) between Northern Europe and North America, and (ii) between Northern Europe and the Middle East.
In order to address these concerns, the companies offered to make the transaction contingent upon the removal of the link that would have been created between CMA CGM's O3 Alliance and NOL's G6 Alliance. In view of the remedies proposed, EC concluded that the proposed transaction, as modified, would no longer raise competition concerns. >>Read More Back
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² EC prohibits Hutchison's proposed acquisition of Telefónica UK
On May 11, 2016, EC blocked the proposed acquisition of Telefónica UK’s O2 by Hutchison under the EU Merger Regulation. This transaction would have combined Telefónica UK's "O2" and Hutchison 3G UK's "Three", which could create a new market leader in the UK mobile market, remove an important competitor, and leave only two mobile network operators, Vodafone and EE, to challenge the merged entity. EC had serious concerns that the takeover would reduce competition in the market and hamper the development of the UK mobile network infrastructure as well as the ability of mobile virtual operators to compete.
Even though Hutchison offered a package of remedies to address these concerns, EC did not consider that they resolved the structural problems created by the disruption to the current network sharing agreements in the UK. The proposed remedies were also not capable of replacing the weakened competition in the retail and wholesale mobile telecoms markets as a result of the takeover. Further, the largely behavioral measures raised significant uncertainty as regards their effective implementation and monitoring, also because they were difficult to define precisely and some depended on the agreement of others. EC therefore decided to block the proposed transaction to protect UK customers and businesses. >>Read More Back
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² EC conditionally clears AB InBev's acquisition of SABMiller
On May 24, 2016, EC cleared under the EU Merger Regulation the proposed acquisition of SABMiller, the world's second largest brewer, by AB InBev, the world's largest brewer. The clearance was conditional on AB InBev selling practically the entire SABMiller beer business in Europe. The proposed transaction would bring together AB InBev, the world's largest brewer, with SABMiller, the world's second largest brewer, creating a global market leader.
EC had concerns that the transaction, as initially notified, could have led to higher beer prices in Member States where SABMiller was currently active, because it would have removed an important competitor and made tacit co-ordination between the leading international brewers more likely. By offering to divest essentially all the European businesses that it initially planned to acquire from SABMiller, AB InBev addressed these concerns. >>Read More Back
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² The Federal Court fines Colgate in laundry detergent cartel proceedings
On April 28, 2016, the Federal Court made orders that Colgate-Palmolive Pty Ltd (Colgate) paid total penalties of $18 million for contraventions of the Trade Practices Act 1974 (now called the Competition and Consumer Act 2010) (“the Act”), following admissions by Colgate in proceedings brought by the Australian Competition and Consumer Commission.
Colgate admitted to entering understandings which limited the supply, and controlled the price, of laundry detergents. The Federal Court described the conduct as serious and the penalty as significant but proportionate. >>Read More Back
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² The Federal Court fines Cement Australia companies $18.6 million for anti-competitive flyash agreements
On April 29, 2016, the Federal Court ordered penalties totaling $18.6 million against Cement Australia Pty Ltd and related companies, for numerous contraventions of section 45 of the Trade Practices Act 1974 (now called the Competition and Consumer Act 2010) (“the Act”), which prohibits corporations from entering into, and giving effect to, contracts and arrangements that have the purpose or effect of substantially lessening competition, in proceedings brought by the Australian Competition and Consumer Commission.
At this stage the penalty judgment had been made available to the parties only on a restricted basis, pending resolution of confidentiality issues. Accordingly, the ACCC could not discuss the details of the penalty decision at this time. >>Read More Back
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² KFTC fines Diageo Korea for restrictive competition
On May 23, 2016, the Korea Fair Trade Commission (“KFTC”) fined Diageo Korea KRW 1.216 billion for its cash compensation, tax rebate and other competition restrictive behaviors in entertainment venues.
Diageo Korea accounted for a 40 percent share in the whisky distribution market. Since June 2011, Diageo Korea had demanded the 197 entertainment venues to purchase a certain amount of its products and limit sales of its rivals' products by reached an agreement with the Keyman. Diageo Korea handed out KRW 50million - KRW 300 million in cash for about 288 times to
'Keymen' of 197 entertainment venues who abided by its contracts.（wKeymen are the managers
who has a great influence on which products to sell in their entertainment venues.）
The KFTC hoped to bring fair competition to the whisky distribution market through the antitrust fine imposed on Diageo Korea. In the future, the KFTC would continue to supervise the companies infringe customer rights through competition restrictive behaviors. >>Read More Back
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² JFTC fines manufacturers of aluminum electrolytic capacitor and tantalum electrolytic capacitor
On March 29, 2016, the Japan Fair Trade Commission (“JFTC”) fined manufacturers of aluminum electrolytic capacitor and tantalum electrolytic capacitor under the regulations of Anti-Monopoly Law. JFTC concluded that the above manufactures violated the third clause of Anti-Monopoly Law (prohibition of improper transaction limits). Therefore, JFTC imposed elimination-measure command and penalty-payment command on the manufactures. >>Read More Back
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² JFTC and MOFCOM signs Memorandum of Understanding on Cooperation
On April 11, 2016, Wayuki Sugimoto, chairman of Japan's Fair Trade Commission, met with Tong Daochi, assistant minister of MOFCOM, and signed a memorandum of understanding on corporation each other. Both parties exchanged opinions on competition policy, execution and individual cases. >>Read More Back
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² CADE approves TNT’s acquisition by FedEx
On March 30, 2016, after analyzing the appeal presented by competitor UPS against the General Superintendence’s decision, the Tribunal of the Administrative Council for Economic Defense – CADE upheld General Superintendence’s decision for the unconditional approval of the merger related to the acquisition control of TNT by FedEx.
UPS, as a third party, filed an appeal before CADE’s Tribunal against the decision published in February. CADE held that it was unlikely the exercise of market power by the companies because of the merger, even though FedEx and TNT hold a fair amount percentage in Brazilian market. And there were observable and measurable efficiencies showing that the net effect of the merger is, at least, non-negative.
Besides, other enterprises that operate in different links of the chain were able to offer this service promptly, although the entry of new players as integrators (which have operational control over all the delivery logistics) was unlikely. Whereas the price of the service increases after the merger, it would be territorial expansion of the integrators that operate in the market. >>Read More Back
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² CADE conditionally clears the joint venture between Itaú Unibanco and Mastercard
On May 12, 2016, CADE approved, with restrictions, the joint venture between Itaú Unibanco and Mastercard for the creation of a new debit and credit card flag in Brazilian market. The restrictions were as follows:
First, a new brand of payment cards must be created, to avoid the “tumbling” of the current clients of Itaú’s cards with the Mastercard flag to the new flag, and the new brand cannot refer to either Itaú Unibanco or Mastercard.
Second, the composition of the joint venture’s administrative council shall be changed, eliminating Itaú’s veto power and prerogative, and shall grant equal power to the parties in regards of the joint venture’s decisions.
Third, CADE imposed a duration period of seven years for the joint venture, reducing the asked duration from the parties. CADE would re-examine the operation in light of the future market and assure the alleged benefits would be effectively introduced in the market, in favor of the consumers.
Forth, Itaú Unibanco and Mastercard to adjust the contract so as to publicize the fees charged to card issuer, granting the transparency and non-discrimination. >>Read More Back
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² BRICS countries sign MOU on competition law and policy cooperation
On May 19, 2016, Brazil, Russia, India, China and South Africa, the five emerging economies known as the BRICS, signed a memorandum of understanding on law and policy cooperation of compeition agencies at the 6th St Petersburg International Legal Forum.
Under the new MOU, the five countries would carry out activities in relation to information exchange and capacity construction to promote cooperation in competition laws and policies. It was anticipated that they would install certain cooperation mechanisms, such as a liaison committee and special topic work group and carry out research programs on competition matters in economic areas that have important social impacts. >>Read More Back
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² CCI imposes record high merger control penalty on GE
The Competition Commission of India (“CCI”) imposed a penalty of INR 50m (USD 755,207) on GE for failing to notify its Alstom deal within the mandated timeframes, which was a record high for merger control in India. The penalty was 0.0001% of the combined value of worldwide assets of the companies.
GE notified its agreement to buy the local assets of France’s Alstom only after the CCI took note of two related public announcements. However, in determining the penalty, CCI took GE’s bona fide conduct into consideration regarding the intent to file the notice, even though after the expiry of statutory timelines.
Under Section 43A of The Competition Act, 2002, if an entity fails to notify the CCI about a merger within 30 days of the public announcement, the regulator can impose a penalty amounting to 1% of the total turnover or assets, whichever is higher, of the combined entity. >>Read More Back
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² CCI dismisses abuse of dominance complaint against state-owned power project finance firm REC
On May 5, 2016, CCI dismissed an abuse of dominance complaint against state-owned Rural Electrification Corp (REC) and its unit REC Power Distribution Co (RECPDCL), engaging in the financing and promotion of rural electrification projects across India. Based on an anonymous
complainant where REC and RECPDCL had tried to use their dominant position in the market for financing of rural electrification schemes “to distort/manipulate competition” for consulting services for power projects, the CCI had ordered a probe in January 2015.
Upon investigation, CCI noted that awarding of work on nomination basis could not be termed anticompetitive as such, and that the evidence on record did not reveal any explicit ‘conduct’ by the companies to influence the decision of the provincial power distribution companies. >>Read More Back
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² SACC concludes assessment of AB InBev/SABMiller merger
On May 31, 2016, South Africa Competition Commission (“SACC”) recommended to the Competition Tribunal (“Tribunal”) that a large merger whereby AB InBev intended to acquire SABMiller be approved with conditions. SACC found that the proposed merger raises several competition and public interest concerns, and thus recommend conditions to the Tribunal to address these concerns.
SACC raised its several concerns, including the Distell shareholding, Coca-Cola and Pepsi bottling arrangements, supply of tin metal crowns, access to cold room and fridge space, creation of a fund, employment, small beer producers, local production, suppliers of input products, BBBEE scheme, etc. >>Read More Back
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² NDRC issues Antitrust Guideline on General Conditions and Application Procedures of Exemption of Monopoly Agreement (Exposure Draft)
On May 12, 2016, NDRC issued Antitrust Guideline on General Conditions and Application Procedures of Exemption of Monopoly Agreement, and solicited public opinions. The Guideline stipulated general conditions and procedures of exemption of monopoly agreement, and how to apply for exemption or exemption consultation with antitrust enforcement authorities when the undertakings are able to prove the agreement meets Article 15 of AML. >>Read More Back
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² CADE publishes preliminary English version of the Guidelines on Cease and Desist Agreement
On March 16, 2016, CADE published its preliminary version of the Guidelines on Cease-and-Desist Agreements (TCCs) for Cartel Cases in English – the document aims to record the practice and the parameters CADE used in the negotiation of TCCs in Cartel Cases, and to serve as a reference to civil servants, lawyers and the society at large, and to grant greater transparency, predictability, effectiveness and agility to TCC negotiations. However, the guidelines were non-binding and the practices and procedures detailed in the guidelines were subject to change depending on specific cases under review.
The document was divided into four sections: cooperation; fines; acknowledgement of
participation in the investigated conduct, commitment to not repeat offenses and other measures; and agreement models used by CADE in TCC negotiations. >>Read More Back
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² CCI relaxes regulatory financial threshold for deal approvals
On March 4, 2016, CCI extended the regulatory financial threshold for deals requiring prior approval Deals involving a target entity with an asset value of less than INR 3.5bn (USD 52m) or a turnover of up to INR 10bn would not need prior approval from CCI. This exemption would be applicable for five years until March 3, 2021.
These changes were expected to bring down the number of merger filings seeking approvals, and to help the CCI conduct more thorough merger scrutiny and cut down the time taken to grant approvals. >>Read More Back
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² Zhong Lun Partner Zhang Baisha attends 2016 Beijing-Shanghai-Guangzhou-Shenzhen Competition and Anti-monopoly Forum
From May 7 to May 8, the 2016 Beijing-Shanghai-Guangzhou-Shenzhen Competition and Anti-monopoly Forum was held in Shanghai. Several hundreds of representatives from anti-monopoly enforcement agencies, universities, research institutions, law firms and domestic and overseas enterprises attended the Forum. Zhang Baisha, partner of Zhong Lun Law Firm, attended the forum and delivered a speech entitled the Competition Regulation on Abuse of Superior Bargaining Position. Combining legislation of France, Germany, Japan and Korea and specific cases, Zhang presented his own view. Zhang also acted as the meeting chairman in the session “Anti-monopoly Investigation Practice” in the Forum.
The Forum was co-hosted by four Lawyers Associations of Shanghai, Beijing, Guangzhou and Shenzhen, and was sponsored by Competition and Anti-monopoly Research Committee of Shanghai Lawyers Association, Competition and Anti-monopoly Committee of Beijing Lawyers Association, Fair Trade Legal Committee of Guangzhou Lawyers Association, Fair Trade Legal Committee of Shenzhen Lawyers Association and Special Member Committee of Shanghai Lawyers Association. The Forum was the first anti-monopoly practice forum jointly organized by different domestic lawyers associations. It had significant guiding influence on practical operation of competition and anti-monopoly, and also provided suggestions to anti-monopoly enforcement agencies on legislation concerning competition and anti-monopoly. >>Read More Back
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