INTERNATIONAL ANTITRUST This outlines the year's most important antitrust developments in ...

33 Pages·2016·0.2 MB·English

INTERNATIONAL ANTITRUST
NIKIFOROS IATROU AND BRONWYN ROE,EDS. PAUL SCHOFF,KATRINA GROSHINSKI,ERIC WHITE,
MARIA CECILIA ANDRADE, RAFAELA P. DE CÁLCENA,ADAM S. GOODMAN,PETER WANG,YIZHE
ZHANG, LAURIE-ANNE GRELIER, PETER CAMESASCA, AURÉLIEN CONDOMINES, SUSANNE
ZUEHLKE, VINOD DHALL, SONAM MATHUR, TAL EYAL-BOGER, ZIV SCHWARTZ, GERARDO
CALDERON-VILLEGAS, VASSILY RUDOMINO, KSENIA TARKHOVA, ROMAN VEDERNIKOV, ALLA
AZMUKHANOVA, HEATHER IRVINE, LARA GRANVILLE, JONATHAN TICKNER, JASVINDER
NAKHWAL, WILLIAM F. CAVANAUGH, JR., ROBERT P. LOBUE, DEIRDRE A. MCEVOY, DANIEL A.
FRIEDMAN,JAKE WALTER-WARNER.1
This outlines the year’s most important antitrust developments in thirteen jurisdictions. A
more detailed publication will be released in 2016.

1 Nikiforos Iatrou & Bronwyn Roe, WeirFoulds LLP (CAN.);Paul Schoff, Katrina Groshinski & Eric White,
Minter Ellison Lawyers (AU); Maria CeciliaAndrade& Rafaela P. de Cálcena, Mattos Muriel Kestener
Advogados(BRA); Adam S. Goodman, Dentons Canada LLP (CAN); Peter Wang& Yizhe Zhang, Jones Day
(PRC); Laurie-Anne Grelier&Peter Camesasca, Covington & Burling LLP (EU); Aurélien Condomines,
Aramis Société d’Avocats (FRA); Susanne Zuehlke, Willkie Farr & Gallagher LLP (DE);Vinod Dhall &
Sonam Mathur,Vinod Dhall and TT&A (IND);Tal Eyal-Boger&Ziv Schwartz, Fischer Behar Chen Well
Orion & Co.(ISR); Gerardo Calderon-Villegas, Baker & McKenzie Abogados, S.C. (MEX); Vassily
Rudomino, Ksenia Tarkhova, Roman Vedernikov & Alla Azmukhanova, ALRUD Law Firm(RUS); Heather
Irvine &Lara Granville, Norton Rose Fulbright (S.AFR); Jonathan Tickner & Jasvinder Nakhwal, Peters &
Peters (UK); William F. Cavanaugh, Jr., Robert P. LoBue, Deirdre A. McEvoy, Daniel A. Friedman & Jake
Walter-Warner, Patterson Belknap Webb & Tyler LLP (USA). The editors thank Lia Boritz, student at
WeirFoulds LLP, for herunflinching assistance.
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I. Australia
A. Legislative Developments
The Competition Policy Review released its final report in March (Review), making
recommendations about competition policies, institutions, and amendments to Australia’s merger
review process and laws regarding cartels, misuse of market power, exclusive dealing and the
introduction of a concept of “concerted practices”. The Australian Government announced that it
will implement most recommendations, but will consult further on proposed amendments to the
dominance prohibition.
B. Mergers
In October, the Australian Competition and Consumer Commission (ACCC) approved
cross-acquisitions between a monopoly pay television company and a free-to-air network, on the
basis of strong competition from free-to-air networks and new streaming services (e.g. Netflix).
It also approved two major telecommunications acquisitions. It publicly opposed only one
merger clearance application: the proposed acquisition of the Northern Territory and far north
Queensland marine freight business of Toll Marine Logistics Australia by Sea Swift. Sea Swift
has applied for authorization on public interest grounds from the Australian Competition
Tribunal.
C. Cartels and Other Anticompetitive Practices
The ACCC commenced proceedings involving serious allegations of bid-rigging
affecting a state Government tender process. In July, the Federal Court delivered judgment in
two appeals relating to cartels between agents and principals: one by the ACCC against the
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decision in proceedings against Australia and New Zealand Banking Group, and one by Flight
Centre Travel Group. The decisions regard the application of Australia’s cartel laws to firms
which sell goods and services both directly and through agents. The ACCC lost both appeals
and, in August,sought special leave to appeal.
In September, Visa was ordered by the Federal Court to pay penalties of $18 million, in
addition to costs of $2 million2 for unlawful exclusive arrangements for dynamic currency
conversion services on point of sale transactions.
D. Dominance
In February, the Federal Court dismissed proceedings against Pfizer for alleged misuse of
market power and exclusive dealing in the supply of generic cholesterol-lowering
pharmaceuticals; the ACCC appealed. The misuse of market power prohibition attracted
extensive debate in the Australian business community and media in the wake of the
Government's announcement for further consultation, following the release of a discussion paper. A final
position on reform is expected for March 2016.
II. Brazil
A. Legislative Developments
In 2015, the Administrative Council for Economic Defense (CADE) launched its
electronic information system (SEI), making case records available online. It published

2 Press Release, ACCC, Visa ordered to pay $18 million penalty for anti-competitive conduct following ACCC
action (Sept. 4, 2015), https://www.accc.gov.au/media-release/visa-ordered-to-pay-18-million-penalty-for-anti-
competitive-conduct-following-accc-action.
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guidelines on gun-jumping and opened consultations on guidelines for compliance programs and
leniency.
CADE approved a resolution3 allowing interested parties to request a consultation on the
application and interpretation of antitrust law in specific cases. It also approved a resolution4 to
allowparties to file petitions online(currently,only mergers can be filed online).
B. Mergers
In January, CADE approved the global acquisition of Veyance Technologies by
Continental AG5. The parties agreed tostructural remedies in Mexico and Brazil.
CADE also approved the acquisition of America Latina Logística by Rumo Logística
Operadora Multimodal, subject to behavioral commitments.6 This transaction raised concerns
due tothe potential to stimulate market foreclosureandencourage discrimination.
C. Cartels and other Anticompetitive Practices
In March, CADE and the Federal Prosecutor’s Office signed a Leniency Agreement with
Setal Engenharia e Construções, SOG Óleo e Gás, and individuals from “Operação Lava Jato”

3 Resolução No. 12, de 11de marçode 2015[Resolution No. 12], Diário Oficial da União de 17.3.2015,
http://www.cade.gov.br/upload/RESOLU%C3%87%C3%83O%20N%C2%BA%2012.pdf
4 Resolução No. 12, de 14de outubrode 2015[Resolution No. 14], http://www.cade.gov.br/upload/CADE%20-
%20Resolu%C3%A7%C3%A3o%2014-2015%20(002).pdf
5 Ato de Concentração [Merger] No. 08700.004185/2014-50, Continental and Veyance.
6 Ato de Concentração [Merger] No. 08700.005719/2014-65,Logística Operadora Multimodal S/A e ALL –
America Latina Logística S.A.
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(Operation Car Wash). Operation Car Wash involved public bidding for Petrobras’ onshore
industrial assembly construction and was Brazil’s largest evercorruption case.
In July, following the execution of a Leniency Agreement, CADE began investigating an
alleged cartel in the foreign exchange market.7
D. Dominance
In July, CADE convicted Eli Lilly for the practice of sham litigation, imposing a fines of
R$36,679,586.16.8 In CADE’s view, Eli Lilly artificially obtained a monopoly over a medicine
by filing numerous court actions in multiple jurisdictions while presenting misleading
information and omitting important data from the judges.
E. Court Decisions
In 2013, CADE fined SKF for setting minimum resale price restrictions for distributors in
Brazil. SKF appealed and in May, the Federal Court decided that CADE’s decision had
breached SKF’s right to legal certainty, since CADE changed the way it reviewed RPM conduct
anddid not prove concrete damages. CADE has appealed this decision.
III. Canada

7 Processo Administrativo [Administrative Proceeding] No. 08700.004633/2015-04.
8 Processo Administrativo [Administrative Proceeding] No. 08012.011508/2007-91, Judgment.
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A. Legislative Developments
In 2015, a controversial9 bill that would have authorized the Commissioner of
Competition (Commissioner) to investigate US-Canada price gaps did not become law.10
The Competition Bureau (Bureau) released new guidelines regarding electronic
production,11 corporate compliance programs12 and its approach to outreach, enforcement and
advocacy.13
B. Mergers
The Bureau permitted magazine14 and newspaper15 transactions without remedies, citing
“competitive pressures from digital alternatives,”16 but treated French-language “brick and

9 Jay Holsten (Chair, Canadian Bar Association, National Competition Law Section, Letter to the Hon. James
Moore (Minister of Industry) re Bill C-49 –Price Transparency Act, February 17, 2015,
http://www.cba.org/CBA/submissions/pdf/15-09-eng.pdf.
10 Bill C-49, An Act to Amend the Competition Act, 2nd Sess., 41st Parl., 2014.
11 CCB, Enforcement Guidelines: Production of Electronically Stored Information, April 28, 2015,
http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/vwapj/cb-ef-e-production-e.pdf/$FILE/cb-ef-e-
production-e.pdf.
12 CCB, Bulletin: Corporate Compliance Programs, June 3, 2015,
http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/vwapj/cb-bulletin-corp-compliance-e.pdf/$FILE/cb-
bulletin-corp-compliance-e.pdf.
13 CCB, Bulletin: Competition and Compliance Framework, November 10, 2015,
http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/vwapj/Competition-Compliance-Framework-Bulletin-
e.pdf/$file/Competition-Compliance-Framework-Bulletin-e.pdf.
14 Press Release,CCB, Competition Bureau Clears TVA Group’s Acquisition of Transcontinental’s Magazines,
Mar. 2, 2015, http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/03876.html.
15 Position Statement, CCB, Competition Bureau Statement Regarding the Proposed Acquisition by Postmedia
Network Inc. of the English-language Newspapers of Quebecor Media Inc., Mar. 25, 2015,
http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/03899.html.
16 Id; Supranote 17.
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mortar” and online book sales separately.17 In a merger involving a joint acquisition by two of
Canada’s largest telecoms, the Bureau required a confidentiality protocol.18 Concerning
Holcim/Lafarge,it required the divestiture of Holcim’s Canadian operations.19
The Competition Tribunal (Tribunal) prohibited the closing of a gas station transaction in
six markets,20 although the Bureau had requested interim relief in fourteen.21
C. Cartels and other Anticompetitive Practices
Pétroles Global was fined CAD $1 million for retail gasoline price fixing in a contested
proceeding;22 an individual was sentenced for bid rigging;23 and a jury acquitted all accused in
another significant bid rigging matter.24 In the (ultimately stayed) chocolate proceedings, the
Ontario Superior Court of Justice (SCJ) ruled that facts proffered to the Bureau by immunity and
leniency applicants were not privileged.25

17 Position Statement, CCB, Competition Bureau Statement Regarding the Acquisition by Renaud-Bray of
Archambault Retail Stores, Sept. 29, 2015,http://www.competitionbureau.gc.ca/eic/site/cb-
bc.nsf/eng/03988.html.
18 Position Statement, CCB, Competition Bureau Statement Regarding BCE and Rogers’ Acquisition of
GLENTEL, May 14, 2015, http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/03924.html.
19 Position Statement, CCB, Competition Bureau Statement Regarding the Proposed Acquisition by Holcim of
Lafarge, May 4, 2015, http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/03920.html.
20 Commissioner of Competition v. Parkland Industries Ltd., 2015 Comp. Trib. 4.
21 Press Release, CCB, Competition Bureau Challenges a Merger between Gas Retailers Parkland and Pioneer,
Apr. 30, 2015, http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/03917.html.
22 R. c. Les Pétroles Global Inc., 2015 QCCS1618 (CanLII).
23 Press Release, CCB,Ontario Individual Sentenced After Pleading Guilty to Bid-Rigging, May 21, 2015,
http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/03936.html.
24 Press Release, CCB, Competition Bureau to Consider Not-Guilty Verdicts in Major Bid-Rigging Case, Apr.
27, 2015, http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/03912.html.
25 R. v. Nestlé Canada Inc., 2015 ONSC 810.
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D. Dominance
The Tribunal permitted continuation of the abuse of dominance application against Direct
Energy, which had exited the relevant water heaters market.26
E. Court Decisions
The Supreme Court of Canada held that the Commissioner had not properly quantified
anticompetitive merger effects under the efficiencies defence.27
In class actions, air cargo was certified,28 but the SCJ refused jurisdiction over absent
foreign claimants;29 in lithium ion batteries, the SCJ refused jurisdiction over two defendants,30
but certified the action against those remaining31; in LCD panels, the SCJ dismissed a defence
limitations motion,32 but refused to add another plaintiff on limitations grounds.33
IV. China
A. Legislative Developments
In 2015, the State Administration for Industry and Commerce (SAIC) published its
Regulation on the Prohibition of Abuse of Intellectual Property Rights That Eliminates and

26 Commissioner of Competition v. Direct Energy Marketing Limited, 2015 Comp. Trib. 2.
27 Tervita Corp. v. Canada (Commissioner of Competition), [2015] 1 S.C.R. 161.
28 Airia Brands Inc. v. Air Canada, 2015 ONSC 5352.
29 Airia Brands Inc. v. Air Canada (2015), 126 O.R. (3d) 756 (S.C.J.).
30 Shah v. LG Chem, Ltd., 2015 ONSC 2628.
31 Shah v. LG Chem, Ltd.2015 ONSC 6148.
32 Fanshawe College of Applied Arts and Technology v. AU Optronics Corporation, 2015 ONSC 2046.
33 Fanshawe College of Applied Arts and Technology v. AU Optronics Corporation, 2015 ONSC 3414.
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Restricts Competition.34 The Regulation is the first set of comprehensive rules dedicated to the
intersection of antitrust and IP laws in China. The Regulation provides some safe harbors, a rule
of reason analysis and details on the application of the lawto IP.
B. Mergers
In Nokia/Alcatel-Lucent, MOFCOM required that Nokia observe its FRAND
commitments for both Nokia’s and Alcatel-Lucent’s standard-essential patents (SEPs) rather
than seek injunction or exclusion orders. It also required that Nokia notify licensees in China of
any of its future transfer of SEPs. MOFCOM changed conditions previously imposed in three
cases—Google/Motorola, Western Digital/Hitachi, and Seagate/Samsung—after review of
alleged changes in circumstances and/or market conditions.35
MOFCOM published four penalty decisions for improperly notified transactions. Fines
were imposed but the transactions were not reversed. Two involved non-filing for joint ventures
and two involved two-step acquisitions with an initial acquisition of 35% of the target’s shares,
which was considered to be “gun-jumping” even if the parties filed notifications for the overall
transactions.36

34 Regulation on the Prohibition of Abuse of Intellectual Property Rights That Eliminates and Restricts
Competition [Guanyu Jinzhi Lanyong Zhishi Chanquan Paichu, Xianzhi Jingzheng Xingwei de Guiding], April
7, effective August1, 2015, http://www.saic.gov.cn/zwgk/zyfb/zjl/fld/201504/t20150413_155103.html
35 MOFCOM,Conditional Approval Decisions webpage,athttp://fldj.mofcom.gov.cn/article/ztxx.
36 MOFCOM, Penalty Decisionswebpage,athttp://fldj.mofcom.gov.cn/article/ztxx/
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C. Cartels and other anticompetitive practices
NDRC and SAIC investigated and issued large fines in high-profile cases, including: (1)
an RMB 6 billion ($940 million) fine against Qualcomm for setting unfairly high royalties for
wireless SEPs, tying sales of non-wireless SEPs, and imposing unfair conditions on sales of
baseband chips;37 and (2) a fine of RMB 350 million ($55 million) on Mercedes-Benz and RMB
120 million ($19 million) on Nissan and their respective dealers for minimum resale price
maintenance.38
Moreover, NDRC cracked down on several administrative monopolies including conduct
by local governmental authorities requiring exclusive dealing with designated companies,
discriminating against non-local companies and restricting participation by non-local companies.
D. Court Decisions
In February, the Intermediate People’s Court of Guangdong Province found that the
Department of Education of Guangdong Province abused its administrative power by designating
a software developed by a company called Glodon as the software to be used in its National
Vocational Students Skills Competition.39

37 NDRC, Administrative Penalty Decisionagainst Qualcomm,at
http://jjs.ndrc.gov.cn/fjgld/201503/t20150302_666170.html
38 Press Release,Mercedes-Benz Fined RMB 350 million for Price Monopoly, Auto Enterprises Faced with
Antitrust Power,http://www.chinanews.com/auto/2015/04-23/7228159.shtml;NDRC, Administrative Penalty
Decisionagainst Nissan,
http://210.76.65.10:9000/pub/gdsfgw2014/zwgk/gzdt/gzyw/201509/t20150910_328993.html
39 Press Release,“Citizen Suits the Government”–Trial of the First Administrative Monopoly Litigation in
China,athttp://news.xinhuanet.com/politics/2015-05/29/c_127854577.htm