At the IBC’s annual Communications and EC Competition Law Conference some in-house counsel expressed frustration with the authorities’ lack of consistency. Zelda Fazaeli reports

What will the change of incumbent in the White House mean for US antitrust policy and practice? Probably not a lot, thinks Terry Calvani* of Pillsbury Winthrop LLP

Julian M Joshua, D Martin Low, QC and Gary R Spratling, three practising partners who are former senior officials of the EU, Canadian and US competition agencies respectively, have drawn on their direct experience of both domestic and multinational anti-cartel enforcement to offer an authoritative analysis of the risks facing cartels today

John Vickers, the Director General of Fair Trading, explains the principles underlying Britain’s new Competition Act and how its provisions relate to the relevant European legislation

Thomas Mueller and Esmée von der Groeben of Wilmer Cutler & Pickering consider the potential chilling effect on the internet-based ‘new economy’ of the EC’s application of predictive analysis

Since 1996 Vice President Notification Management/ International Regulatory Affairs at Deutsche Telekom AG’s head office in Bonn, responsible for competition law and international regulatory affairs within the Goverment Relations department.

Studied law at the Universities of Mainz and Speyer and holds a post-graduate law degree from the University of London. While training as a lawyer, worked for a leading international law firm and for the European Commission.

Following a short stint in private practice, joined Deutsche Telekom´s International Division in May 1995. Worked on the ATLAS/ GlobalOne notification team and was also responsible for international regulatory affairs and corporate law.

Bonelli Erede Pappalardo has lured away Chiomenti Studio Legale’s head of European and competition law. Luca G Radicati di Brozolo will join his new firm as a partner.

Richard Parker has resigned as Director of the US Federal Trade Commission’s Competition Bureau and will resume private practice as a litigator.

Richard Parker’s successor as FTC Competition Bureau Director, Molly Boast, took over on January 15.

Harvey Goldschmid, the Securities and Exchange Commission general counsel and special senior advisor to Chairman Arthur Levitt, has stepped down to resume his post as Dwight Professor of Law at Columbia University.

Canadian cartel investigator Martin Low is joining McMillan Binch as competition partner.

Brussels firm Renouf & Co plans to build a competition and trade practice around new recruit Ursula O’Dwyer. O’Dwyer joined Renouf in December from Bogaert &Vandemeulebroeke, where she was head of the EC legal practice. Previously she had been a director at PriceWaterhouseCoopers.

SJ Berwin is establishing an European Union and competition law practice in Madrid. It will be co-lead by Brusselsbased partner Ramon Garcia Gallardo and Madrid-based partner Julio Veloso.

Juan Rodriguez has left British Petroleum, where he was in-house competition counsel, to become a partner with Sullivan & Cromwell in London.

David Whibley, Xerox Europe’s head of legal, has joined Morgan Cole, where he will lead the competition practice.

Jones Day, Reavis & Pogue has hired a senior associate from Clifford Chance to lead its competition practice in London.

The former Director General of the UK’s Office of Fair Trading, John Bridgeman, has joined Norton Rose’s competition practice as a part-time consultant.

Alan Asher, deputy chair of the Australian Competition and Consumer Commission (ACCC), will take his competition and consumer protection experience to Consumers International (CI).

Charles Rule is joining Fried, Frank, Harris & Jacobson as partner and head of antitrust. Rule, formerly Asistant Attorney-General in charge of the Antitrust Division under President Reagan, will lead the antitrust practice from the firm’s Washington DC office.

Cable & Wireless mobile’s public policy manager, Anneliese Reinhold, is moving to UK firm Kemp & Co, where she will be a consultant on regulatory policy.

Pernod-Ricard and Diageo are teaming up to buy Seagram’s drinks porfolio.

Chicken giant Tyson Foods Inc has successfully fought off rival Smithfields Food Inc to acquire IBP Inc for US$3.2 billion. Commentators expect the deal to attract considerable antitrust scrutiny over the coming months.

PepsiCo is all set to buy Quaker Oats after late antitrust concerns forced rival Coca-Cola out of the running. It is thought Coke felt that it would be unable to get a deal past the FTC.

The European Commission is to block the Metsä-Serla/SCA tissue paper deal on competition grounds, according to press reports. Sources close to the deal say that a rejection is 'likely'.

The world’s largest chemical company, BASF Pharma in Germany has sold its pharmaceuticals operations for US$6.9 billion to Abbott Laboratories of Illinois, USA.

SmithKline Beecham’s US$1.24 billion acquisition of Block Drug has now received antitrust clearance in the US, EU, Canada, Australia and Poland.

German airline Lufthansa hopes to get approval from Brussels soon for its joint venture with SAS Scandinavian Airlines and British Midland.

Freeserve, the UK’s largest internet service provider, is to merge with France Telecom subsidiary Wanadoo in a US$2.3 billion deal. The acquisition by Wanadoo is seen as an important step in its, and parent France Telecom’s, expansion.

Lafarge of France has bought the 77.4 per cent it doesn’t already own of rival Blue Circle Industries PLC of the UK for US$3.6 billion, creating the world’s largest cement maker.

NetIQ, a leading provider of e-business infrastructure management software based in San Jose, California, has merged with WebTrends Corporation in a transaction valued at approximately US$1 billion.

The Spanish utility ENDESA has acquired 30 per cent of the share capital of SNET, an electricity producer. SNET is a subsidiary of Charbonnages de France.

Nestlé, the world’s largest food company, is set to become the world’s largest pet food company following its US$10.1 billion acquisition of Ralston Purina, the US’s largest pet food manufacturer.

American Airlines is to buy bankrupt Trans World Airlines Inc, for US$3.5 billion.

The Argentine Court of Appeals has confirmed a fine amounting to US$109,644,000 imposed by the Argentine Antitrust Agency against Repsol-YPF, the largest oil/gas producer, for its anti-competitive marketing policies for liquified petroleum gas. Repsol-YPF has appealed to the Supreme Court.

Osvaldo J Marzorati
Allende & Brea
Buenos Aires

The case law relating to the 1999 amendment of the Cartel Act has seen the application of the effects doctrine in merger cases. Thus jurisdiction is only given if the transaction is likely to have at least a potential effect on the Austrian market.

Furthermore the court in several cases has made use of its new power to act ex officio, though a year’s experience of the revised law has exposed significant flaws in the procedural rules.

Rainer Roniger and Astrid Ablasser
Haarmann Hemmelrath Hügel
Vienna/Brussels

The end of 2000 saw further developments in the long saga of the liberalisation of the Belgian electricity market, and in particular the appointment of the high voltage grid operator. Despite the progress made, the European Commission is not entirely convinced that Belgium is liberalising its electricity market quickly enough.

Florence Melchior
Freshfields Bruckhaus Deringer
Brussels

Canadian, Australian and New Zealand Antitrust Agencies have signed a cooperation agreement; the Competition Bureau has investigated the motion picture industry and the brewing industry in Quebec province; and the acquisition of The Globe & Mail by BCE Inc has not been challenged by the Competition Bureau.

John F Clifford and Jeffrey P Roode
McMillan Binch
Toronto

The judgment of the Court of First Instance in Bayer v Commission (T- 41/96) is important for pharmaceutical and other firms in that it confirms that they may in certain circumstances refuse or limit supplies to resellers with a view to hindering parallel exports, without infringing Article 81. The ruling also has a wider import, in that it deals with the evidence which the Commission must adduce in order to prove the existence of an 'agreement' within the meaning of Article 81, and the Commission has appealed against this aspect of the decision to the European Court of Justice.

Joanna Goyder
Freshfields Bruckhaus Deringer
Brussels

According to the Finnish Ministry of Justice a proposal to establish a new special Court responsible for among other things competition matters is now in preparation. The proposal is expected to be put before parliament in April and enter into force - if passed - on January 1, 2002.

Christian Wik and Helle Lindegaard
Roschier-Holmberg & Waselius
Helsinki

Traditionally, the French Ministry of Economy, which is responsible for deciding whether a concentration should be cleared under French law, has treated all joint ventures involving the creation of a separate entity as concentrative. Recently, however, it changed its position by ruling, in a decision dated August 11 1999, that the notification of the creation of the Opéra joint venture did not fall within the French merger control rules.

Pascal Belmin
Freshfields Bruckhaus Deringer
Paris

Cases of fines for failure to notify a transaction in Germany are relatively rare. However, the recent Herlitz/ Landré decision demonstrates the willingness of the Federal Cartel Office to penalise violations of the duty to notify. As Dr Ulf Böge, President of the Cartel Office, said of the decision: 'Merger control is an essential requirement for securing competitive structures. Companies must be aware that an infringement of the obligation to notify that is specified in merger control law is not a minor offence. The Office will not accept such infringements in the future either.'

Carel Maske
Freshfields Bruckhaus Deringer
Brussels

The Hungarian Competition Office held in its decision that in respect of the well-recognised distortive effects of state subsidies, the market for pharmaceuticals qualifies as a competitive market, and therefore competition law aspects of market conduct must be investigated too. In the case at issue, the Office found that three associations comprising Hungarian, as well as foreign, market players had engaged in anticompetitive conduct. The three associations had adopted a decision in which they recommended to their members increasing the price subsidised pharmaceutical products in a coordinated manner and to an identical extent. The Competition Office established that the associations’ action constituted a restriction of competition and consequently imposed fines totalling 11 million forint. The Competition Council concluded that the recommendation of the associations concerning the price increase constituted an indirect price determination. The Council further held that any decision or agreement which by virtue of mediating between competitors or between the allies of competitors, aims or could aim to exclude price competition, whether in the short or long term, is a prohibited price-fixing agreement under Hungarian competition law.

Iván Bartal
Oppenheim & Partners/ Freshfields Bruckhaus Deringer
Budapest

The Dutch Competition Authority has recently investigated several restrictive agreements in the healthcare sector, into which the Dutch government has started to introduce market forces. The Authority has taken two decisions in relation to requests for exemption from health insurance funds. These requests concerned agreements for the purchasing of care with pharmacists and physiotherapists respectively. In the two decisions, the Authority gives more general guidance with regard to what agreements in the healthcare sector it considers anti-competitive.

Pepijn van Ginneken
Allen & Overy
Amsterdam

In the early 1990s, to encourage free competition in the Peruvian markets, an antitrust regime was introduced in Peru. Enforcement and regulation were entrusted to the Institute for the Defence of Competition and the Protection of Copyright (INDECOPI). Since then, INDECOPI has investigated and penalised a number of cases of abuse of significant market power (vertical restraints) and concerted behaviour harmful to free competition (horizontal restraints) in Peru. In the main column are listed some of the specific behaviours covered by the Peruvian Antitrust Act and the rules under which they are penalised.

Alberto Rebaza
Rodrigo, Elías & Medrano, Abogados
Lima

Because of the rapid transformation of the Polish economy over the past decade, the merger control provisions of the Antimonopoly Act 1990, although considerably modified, are no longer adequate to current market conditions, nor do they meet the needs of the regulator (the President of the Competition and Consumer Protection Office) or the business community. Moreover, they do not fully reflect Poland’s undertaking to harmonise its competition rules with those of the EU under Articles 68 and 69 of the Europe Agreement of December 16 1991. The draft Competition Act aims to remedy these deficiencies.

Przemyslaw Grabowski
Weil, Gotshal & Manges
Warsaw

On December 23 2000, the Spanish Government adopted Royal Decree 3456/2000, which governs the provision of unbundled access to local loops within the deadline provided for by the European Commission in its Recommendation of May 25 2000. The Royal Decree can be seen as an important step in the liberalisation of Spanish telecommunications which has been ongoing since 1998. However, the effectiveness of the Royal Decree in terms of the actual liberalisation of local loops remains to be seen. In other countries with an advanced liberalisation process in this area, the number of users who have actually switched operator has been relatively small. Subsequent to the entry into force of the Royal Decree, only two companies, ALO and Retevisión, have asked Telefónica for access to its local loop.

Natalia Trujillo
Freshfields Bruckhaus Deringer
Madrid

The UK Secretary of State for Trade and Industry has followed the recommendation of the Competition Commission and prohibited Interbrew’s acquisition of Bass Brewers, which was completed in August 2000. The European Commission had referred jurisdiction over the merger to the UK authorities under Article 9 of the EC Merger Regulation. The UK authorities were concerned that the merger would create a duopoly between Interbrew and its next-largest competitor, Scottish & Newcastle. However, the analysis of the creation of the duopoly does not entirely follow the criteria developed by the European Commission under the EC Merger Regulation and the prohibition may be a disproportionate remedy.

Matthew O’Regan
Freshfields Bruckhaus Deringer
London

The long-awaited amendments to the HSR Act are intended to effect a significant reduction in the number of transactions requiring pre-merger notification filings in the United States. By focusing on the size of the transaction rather than the size of the participants, however, the new legislation may require an increased number of filings for transactions that were previously not covered by the HSR Act or were exempt under the implementing regulations. While the new US$50 million minimum size-oftransaction threshold can be expected to streamline the reportability inquiry for smaller acquisitions, larger transactions will still require careful analysis to assure compliance with the HSR scheme.

Ronan P Harty and Jennifer B Arlin
Davis Polk & Wardwell
New York City