Competition Law News & Updates

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February 28, 2013
COMPETITION UPDATE
The Netherlands

Anticompetitive practices - Enforcement authorities

The Act of 28 February 2013 establishing a new competition authority (Instellingswet), the Authority for Consumers and Markets (Autoriteit Consument en Markt - ACM), entered into force 1 April 2013. The ACM brings together under one regulatory umbrella the Competition Authority (Nederlandse Mededingingsautoriteit), the Independent Post and Telecommunications Authority (Onafhankelijke Post en Telecommunicatie Autoriteit) and the Consumer Authority (Consumentenautoriteit). Apart from the Policy and Communications Department, the ACM is now composed of six operational departments: the Consumer Department, the Energy Department, the Telecommunications, Transport and Postal Services Department, the Competition Department, the Legal Department and the Corporate Services Department. The ACM will apply the current Dutch Competition Act, which will be subsequently reformed.

See GCL No 21.07

January 29, 2013
COMPETITION UPDATE
United Kingdom

Enforcement proceedings – Damages

The ministerial Department for Business Innovation and Skills (BIS) has published its response to a consultation concerning private actions in competition law. The Government has decided to implement reforms in four main areas:

1) to establish the Competition Appeal Tribunal (CAT) as the main venue for competition actions. This would involve allowing the CAT to hear stand-alone as well as follow-on cases and giving it the power to grant injunctions. It would also create a fast track for simpler cases in the CAT, delivering swift, cheap results, to empower SMEs to challenge anticompetitive behavior that is restricting their ability to grow.

2) to introduce a limited opt-out collective actions regime in order to address concerns in this respect related to frivolous or unmeritorious litigation, by introducing a set of strong safeguards, including:

  • strict judicial certification of cases so that only meritorious cases are taken forward (including a preliminary merits test, an assessment of the adequacy of the representative and a requirement that a collective action must be the best way of bringing the case);
  • no treble or exemplary damages;
  • no contingency fees for lawyers;
  • maintaining the ‘loser-pays’ rule so that those who bring unsuccessful cases pay the full price.

The BIS suggests that claimants in such a case could be either consumers or businesses, or a combination of the two and that collective actions would be able to be brought either by claimants or by genuine representatives of the claimants only, such as trade associations or consumer associations, but not by law firms, third party funders or special purpose entities.

3) to promote alternative dispute resolution (ADR). In addition to strongly encouraging ADR throughout these reforms, the Government is also introducing two more substantive measures to promote ADR: establishment of a new opt-out collective settlement regime in the CAT similar to the Dutch Mass Settlement Act (2005) and giving the new Competition and Markets Authority a limited role in certifying redress schemes.

4)  to ensure that private actions complement the public enforcement regime. The Government considers that it is essential that whistleblowers are not discouraged from informing on cartels. But as the European Commission is expected to bring forward proposals within the next few months, the Government is no more intending to take domestic action in this area.

See GCL No 29.21

December 29, 2012
COMPETITION UPDATE
Turkey

Merger control – Thresholds

Today, the Turkish Competition Authority published “Communique No. 2012/3 on the Amendment of Communique no. 2010/4 on the Mergers and Acquisitions Subject to the Approval of the Competition Board”, amending the turnover thresholds that a given merger or acquisition must exceed before becoming subject to notification for the purposes of the Turkish merger control regime.  Communique No. 2012/3 will enter into force on February 1, 2013.

 

As a result, a merger must be notified where:

  1. the total turnover of the parties exceeds TL 100 (approximately € 42.4 million and US$ 56 million as of December 31, 2012) million  in Turkey and the respective Turkish turnovers of at least two of the parties individually exceed TL 30 million (approximately € 12.7 million and US$ 16.8 million as of December 31, 2012),
     

  2. the worldwide turnover of one of the parties exceeds TL 500 million (approximately € 212 million and US$ 280 million as of December 31, 2012 ) and the Turkish turnover of at least one of the other parties exceeds TL 30 million (approximately € 12.7 million and US$ 16.8 million as of December 31, 2012)

Accordingly, Communique No. 2012/3 amends the second prong of the turnover threshold test such that if the worldwide turnover of at least one of the parties to the transaction exceeds TL 500 million (approximately € 212 million and US$ 280 million as of December 31, 2012), then the transaction becomes notifiable only where the other party has a turnover of at least TL 30 million (approximately € 12.7 million and US$ 16.8 million as of December 31, 2012) in Turkey (instead of TL 5 million which was the turnover figure previously provided by the Communique No. 2010/4).

 

See GCL, No. 51.17

December 5, 2012
COMPETITION UPDATE
European Union

State aid – Enforcement proceedings

As part of the 2012 State Aid Modernization package, the European Commission has adopted proposals to amend Council Regulation No 659/1999 of 22 March 1999 (‘Procedural Regulation’) and No 994/98 of 7 May 1998 (‘Enabling Regulation’).

The reform of the 1999 Procedural Regulation will concentrate State aid enforcement on the most significant distortions of competition in the internal market and accelerate procedures. The Commission proposes to simplify the procedure for filing and handling complaints. The proposed amendment also sets up more efficient means of obtaining information directly from market operators.

The reform of the Enabling Regulation would allow the adoption of a larger number of block exemptions for aid having limited effect on the internal market. Certain categories of aid would be exempted from prior notification such as aid to culture, aid for compensating damages caused by natural disasters, aid for innovation, aid for forestry, aid to compensate the damage caused by adverse weather conditions in fisheries, aid for amateur sports, and certain types of aid for transport and for broadband infrastructure.

See GCL No 1.88

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