Antitrust, competition
and trade

Briefings in English - 2010

Although merger control has been actively enforced since China’s Antimonopoly Law (AML) came into force, including quite controversially in a number of cases involving non-Chinese companies, enforcement of the so-called behavioural rules governing anti-competitive agreements and abuse of dominant market positions has been slower to start. That is expected to change soon and will lead to new risks for companies operating in China. This guide summarises the most important features of the AML, including the scope of the law and early enforcement priorities of China’s multiple competition law agencies. (July 2010)

Multilateral development bank investigations now threaten harsher sanctions and higher costs. Debarments are on the rise and, under a new agreement, several banks have agreed to cross-debar firms debarred by another bank. This briefing outlines the issues and explains how contractors should plan ahead for investigations and protect themselves with up-to-date compliance programs. (July 2010)

The European General Court has largely upheld a European Commission fine on AstraZeneca for abuse of dominance. The abuse consisted of conduct hindering competitors from marketing generic equivalents of its anti-ulcer medicine Losec and impeding parallel imports. The judgment confirms that dominant companies need to exercise great care in using regulatory procedures related to intellectual property and similar rights and that their conduct may be treated as abusive even if they are exercising a legal right. (July 2010)

On 24 May 2010, the United States Supreme Court issued its unanimous ruling in American Needle, Inc v National Football League. The Court held that a co-operative trade mark licensing venture created by teams in the National Football League (NFL) is subject to scrutiny under section 1 of the Sherman Act. The Court rejected the position of the lower court of appeals and of the NFL that the venture was a ‘single entity’ immune from such scrutiny, concluding rather that the licensing activities constituted concerted action that should be analysed under a ‘rule of reason’ to determine whether they violated the antitrust laws. (May 2010)

The European Commission has launched a formal consultation on the EU competition rules applicable to co-operation agreements between competitors. Its proposals would maintain the existing overall framework but include welcome new guidance on information exchange arrangements and on industry standard-setting agreements. The deadline for comments is 25 June. (May 2010)

The US antitrust enforcement agencies recently released proposed new Horizontal Merger Guidelines. The proposed Guidelines demonstrate the agencies’ movement away from the traditional linear framework for merger analysis – embodied in the previous 1992 version of the Guidelines – to a more holistic, multi-factor and fact-specific approach. The proposed Guidelines and their effect on merger review analysis in the US are explored in detail below. (April 2010)

The European Commission has adopted new competition rules on supply and distribution agreements, applicable as from 1 June 2010. The changes to the existing regime are of particular relevance to consumer product producers and retailers, as well as some industrial manufacturers and suppliers. The block exemption will no longer be available for distributors with a large market share. Revised guidelines include welcome new guidance on common commercial practices, such as resale price maintenance, up-front access payments and category management. There is also further clarification on online distribution. This briefing provides a short summary of the new rules. (April 2010)

In the latest manifestation of its significant interest in challenging exclusionary conduct by dominant firms, the Federal Trade Commission (FTC) announced this month that it had entered into a consent order with Transitions Optical. The order addresses Transitions’ exclusive dealing and other vertical arrangements, alleged to have helped Transitions maintain a monopoly position. The FTC relies explicitly on an expansive view of Section 5 of the Federal Trade Commission Act that the FTC articulated in its complaint against Intel in December 2009. (March 2010)

Our EU public affairs practice operates as part of our Brussels office and provides strategic advice on a broad range of European law issues concerning communications and media, competition, ecommerce, intellectual property, environment, financial services, energy, taxation and company law issues. (March 2010)

This briefing examines the civil fine of $900,000 that Smithfield Foods has agreed to pay to settle charges that by exercising operational control over Premium Standard Farms it acquired beneficial ownership of Premium Standard Farms before obtaining clearance. By engaging in this conduct, also known as ‘gun jumping’, the parties violated premerger waiting period requirements as required under US antitrust laws. (January 2010)

The regulation of dominant firm conduct in 40 jurisdictions worldwide. Please visit the website www.GettingtheDealThrough.com for a review and order form.

Last year, we all experienced unprecedented challenges in our business environment across the globe. The antitrust authorities, and businesses facing investigation, were not immune to those challenges. This report highlights how those challenges may affect your business decision making this year. (January 2010)

The Law Business Research guide to the regulation of mergers and joint ventures in 64 jurisdictions, including chapters written by Freshfields Bruckhaus Deringer. Please visit the website www.GettingtheDealThrough.com for a review and order form.

Briefings in German - 2010

Der Bundesrechnungshof hat in einer Mitteilung an das Bundesministerium der Finanzen eine grundlegende Umgestaltung der Entlastung bei der Energie- und Stromsteuer vorgeschlagen. Danach soll der Sockelbetrag auf 2.500 Euro angehoben sowie die Steuerentlastung von den Rentenversicherungsbeiträgen entkoppelt werden. Stattdessen soll eine degressive Steuerentlastung eingeführt werden, die bei energieintensiven Unternehmen von bisher 95 Prozent auf bis zu 50 Prozent fallen kann. Der Vorschlag lässt die mittelfristigen Effekte einer solchen Gesetzesänderung unberücksichtigt. (Juli 2010)

Das Energiesteuerrecht hat immense Auswirkungen auf Kosten und Gewinne von Unternehmen, die mit Energieerzeugnissen handeln oder diese verwenden. Die Unternehmen sind daher gezwungen, die daraus folgenden Rechte und Pflichten zu ennen und aktuelle Entwicklungen zu beobachten. Vor diesem Hintergrund geben die folgenden Ausführungen einen Überblick über bedeutende Entwicklungen und Diskussionen in jüngster Vergangenheit. Hierzu zählen verfahrenstechnische Neuerungen, Steuerentlastungsmöglichkeiten und damit verbundene Gefahren (z. B. in den Bereichen von Dual-Use-Prozessen, des Contracting und der Luftfahrt) sowie Pläne der Kommission zur Änderung der Energiebesteuerung. (März 2010)

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