GEERT GOETEYN and KRISTIAN HUGMARK of Howrey Simon Arnold & White LLP, Brussels, report on the 15th annual European Air Law Association conference held in Brussels last month

Christine Sommer of Baker & Miller PLLC reports

On 2-3 October the Canadian Bar Association held its annual conference on competition law. DAVID SAMUELS attended

This year the International Bar Association added a second day to its conference in Fiesole. DAVID SAMUELS reports on whether this improved the event

On 18 November a seminar was held in Brussels on the emerging area, in Europe, of efficiencies. FLAVIA DISTEFANO of Wilmer Cutler & Pickering reports

For many the Fordham conference is the beginning of the antitrust term. PHILIPPA WARD reports on this year’s gathering in New York, which was also its 30th birthday

COMPANY: Halliburton
TITLE: Assistant general counsel, regulatory matters
BASED: Houston, Texas

GLOBAL COMPETITION REVIEW’s editor DAVID SAMUELS spoke to Fernando Sánchez Ugarte, President of Mexico’s Comisión Federal de Competencia (CFC) and recently-appointed chair of the International Competition Network Steering Group

The world’s enforcers were in Asia in November, at meetings in Japan and Taiwan. DAVID SAMUELS considers whether competition policy in the region is finally coming of age

HIDETO ISHIDA and VASSILI MOUSSIS of Anderson Mori, Tokyo, report on the clarifications issued by the Japan Fair Trade Commission on the informal prior consultation procedure for proposed mergers

Antitrust laws do not necessarily translate into effective competition policy, and a top-down approach to rulemaking, such as that proposed by the WTO, may not be the best way of achieving transnational competition policy goals. By MICHAEL W NICHOLSON of the US Federal Trade Commission

ANTHONY F BALDANZA and HUY DO of Fasken Martineau DuMoulin LLP, Toronto, review proposed amendments to the Canadian antitrust regime which in particular would reduce the scope of the efficiencies defence and reform the criminal conspiracy provisions under the much-criticised Section 45 of the Competition Act

LEONARD WAVERMAN, Professor and Chair, Department of Economics, London Business School, and Special Consultant, NERA, believes DG Comp should bring competition policy to bear on EU State aid cases and only take on those that meet the standards of Articles 81 and 82

The Canadian government has appointed Sheridan Scott as the new Commissioner of Competition. She is the first woman to hold the post.

Cleary Gottlieb Steen & Hamilton has poached Dirk Schroeder and Romina Polley from Linklaters. They will be based in Cologne. Schroeder’s exit left Linklaters briefly without a national head of competition for Germany.

Topping from Bird & Bird. He will join the firm’s Brussels office at partner level.

Wilmer Cutler & Pickering has launched a UK-competition specialist practice, to be led by Suyong Kim, formerly of Denton Wilde Sapte.

The US economics firm Lexecon Inc is losing two of its founders, Andrew Rosenfield and William Landes.

Italian firm Macchi di Cellere Gangemi has opened an EU and competition law practice group, recruiting four specialists in its Rome office to deliver competition-related advice.

US law firm Kirkland & Ellis must have set a record-announcing six new antitrust partners in under two weeks over the autumn.

The South African Competition Commission has referred GlaxoSmithKline South Africa and Boehringer Ingelheim to the Competition Tribunal, citing anticompetitive practices in the distribution of their anti-retroviral HIV treatments.

A US district court judge has ruled that major investment banks are ‘immune’ from antitrust claims, dismissing a class action.

Plaintiffs were alleging a conspiracy to allocate stock during the dotcom IPO boom.

Brazil’s antitrust regime has granted immunity from prosecution to a company that reported a cartel. It is the first time that Brazil’s leniency programme has produced a result.

Unilever has failed to overturn the EC’s ruling against its agreements with Irish icecream retailers.

In an unexpected twist, the New Zealand Commerce Commission has rejected the Qantas/Air New Zealand alliance. The arrangement drew a negative decision from Australia’s ACCC in September.

The European Commission has announced its largest fine of the year-e138.4 million against a group of companies that produce sorbates.

The acquisition of Brazilian tractor company Valtra by US agricultural machinery company Agco is suddenly in antitrust-related difficulty. CADE has issued a preliminary injunction forcing the companies to hold separate until it completes its investigations.

The US Department of Justice has filed a civil antitrust suit against First Data/Concord, a proposed merger between the controllers of the largest and thirdlargest PIN networks in the US.

In this case the president of the Belgian Competition Council imposed significant obligations on the leading Flemish commercial broadcaster in an effort to preserve the diversity of the Dutch language newspaper market in Belgium. Nevertheless, antitrust enforcement cannot completely compensate for the absence of effective sector-specific media regulation. Such regulation, for example, can take into account political or social interests that fall outside the remit of competition law. In addition, competition authorities’ power to order positive action is legally limited to remedying conduct which is in itself contrary to the competition rules.

Tom Snels and Victor Yangandi
Freshfields Bruckhaus Deringer
Brussels

Despite a leniency programme being in existence since 2000, only recently have details of an agreement under the programme been made public.

Mauro Grinberg
Araújo e Policastro Advogados
São Paulo

In September 2003 the Finnish Ministry of Trade and Industry (MTI) published its draft proposal to amend the Finnish Competition Act 1992. The reforms mirror at national level the current changes taking place in the European Community, most notably those to be introduced in May 2004 when EC Regulation 1/2003 enters into force. The proposed reforms include, inter alia, the substantive harmonisation of national law with the EC competition provisions, the abolition of the national notification system and the introduction of a national leniency policy. In addition, if adopted, the amendments would have implications at the institutional level and alter the notification thresholds in respect of national merger control.

Christian Wik and Anna Roubier
Roschier Holmberg, Attorneys Ltd
Helsink

In this case the Federal Supreme Court ruled for the first time on the judicial review of a merger clearance initiated by a competitor, a possibility that was only introduced into the law in 1999. It has clarified that the reviewing court is obliged to examine the market situation itself if the FCO’s decision lacks sufficient analysis. Also, the strict conditions for an annulment of a FCO decision limit the possibility of extending merger clearance proceedings excessively. Most importantly, the Federal Supreme Court has limited the scope of the examination of the FCO’s decision. Competitors can appeal against clearance decisions only if affected by the decision. On balance, the decision therefore gives more legal certainty to merging parties.

Tilman Siebert
Freshfields Bruckhaus Deringer
Berlin

This decision represents one the first cases in the EU containing a detailed market analysis of wi-fi services. The antitrust concerns considered by the IAA indicate the inevitable structural competitive advantage held by incumbent fixed telecom operators in the supply of public wi-fi services as a result of their widespread networks (as data backhauling is the most costly asset for providing these services), allowing them to easily connect the relevant hot spot with the fixed infrastructure; and the possibility of leveraging on their broadband Internet services customer base in order to win significant portions of public wi-fi services demand. Finally, this decision also indicates that where a nascent market is affected, particularly if an incumbent operator is involved, the apparently de minimis position of the target (in 2002 Megabeam generated a turnover of 145,000 in Italy) does not exclude per se the possibility that the concentration under scrutiny may generate restrictive effects.

Fabio Falconi and Gian Luca Zampa
Freshfields Bruckhaus Deringer
Rome

Since this is the first briefing about Macedonian competition law, we offer some introductory remarks about the current situation and expected reforms. Competition law has existed in Macedonia for three years. However, even within such a short time-frame there are some conclusions to be drawn from the practice so far which provide a framework for further measures to be taken. Rather than seek to predict the direction of future developments, we summarise the main ingredients of the current system and possible legislative amendments. currently being considered.

Simeon Petrovski, LLM
State Adviser
Constitutional Court of the Republic of Macedonia Skopje

The Competition Authority is of the opinion that the present joint arrangements with regard to the sale of TV rights to live football matches unnecessarily limit the range of matches offered on TV. In the present situation, Eredivisie NV sold the entire package of matches of the 18 Dutch Premier League clubs to Canal+. As a result, only a limited number of matches are broadcast by the pay-TV channel Canal+. NMa has ruled that the exclusivity granted as a result of this and the agreed restrictions on the number of matches broadcast unnecessarily restricts competition.

Pepijn Van Ginneken
Allen & Overy
Amsterdam

In this recent decision, the Rotterdam district court confirmed that the Dutch competition authority (NMa) can, when investigating a possible breach of the competition law, not only interview an undertaking’s legal representatives but also individual employees. It is the first time that this practice of the NMa has been scrutinised by the Dutch courts, and confirms that the NMa has supervisory powers that go beyond those of the European Commission.

Sebastian Vos
Freshfields Bruckhaus Deringer
Amsterdam

It did not come as any surprise that the merger was cleared. From the outset the Banking, Insurance and Securities Commission had indicated such a result, voicing disagreement with the NCA’s initial market analysis and reservations expressed. As for the conditions stipulated by the NCA, comments from DnB NOR were generally to the effect that the conditions to a great extent corresponded to plans which DnB NOR itself had proposed to the NCA. It was explicitly stated by DnB that it was considered feasible to comply with the conditions without harming the objectives of the merger. With its decision the NCA has accepted the creation of a ‘national champion’ in the banking sector. It will be interesting to see whether this has complicated or facilitated the possibility of a takeover by international interests in the future.

Jonas W Myhre
Wikborg, Rein & Co
Oslo

The departure of the High Court from the settled view of the Commission in this case is striking. It had been anticipated that the Court would defer to the Commission, following general principles of consistency, EC policy and a traditional respect for the competence and expertise of specialist antitrust authorities. However, the High Court was under no formal obligation to follow the Commission, since the defendant was not a party to any of the earlier cases. This judgment may have a dissuasive effect on private antitrust enforcement actions in the UK. Claimants have traditionally sought to rely on findings of competition authorities in similar cases in order to discharge the burden of proof. Henceforth, it appears, such reliance may only be safe where an authority has identified an infringement in the actual case before the court.

Patrick Doris
Freshfields Bruckhaus Deringer
London

The recent judgment of the United States District Court for the Northern District of Illinois in Asahi Glass Co Ltd v Pentech Pharmaceuticals Inc (Judge Posner) demonstrates a judicial reluctance to permit thirdparty antitrust claims to be brought against parties that have settled a patent dispute, at least where the circumstances of the settlement do not amount to ‘bad faith’ or constitute a device to circumvent the antitrust laws.

Ronan P Harty
Christopher H Withers
Davis Polk & Wardwell
New York City