General Procedure and Enforcement: Competition

On 18 August 2009, the UK Office of Fair Trading (OFT) began a three-month consultation on proposed changes to its guidance on competition disqualification orders (CDOs).

The New Zealand Commerce Commission has developed a new streamlined authorisation process designed to enable faster decisions for straightforward authorisation applications for certain restrictive trade practices or business acquisitions.

On 27 April 2009, the US Federal Trade Commission (FTC) adopted as final the interim amendments to the FTC's Rules of Practice for adjudicative proceedings that it announced in December 2008. In addition to implementing the interim rule revisions, the FTC amended several rules and eliminated one rule. According to the FTC, the rule revisions are designed to shorten the duration of adjudicative proceedings and improve the overall quality of the adjudicative process

On 12 March 2009, the 13th Arbitration Appeal Court allowed an appeal of FAS Russia and revoked a ruling of the Arbitration Court of St Petersburg and the Leningrad region. The Court also dismissed the claim of Gazprom Neft OJSC, which requested the annulment of a determination of FAS Russia that imposed an administrative fine on the company for failing to provide requested information.

On 10 February 2009, the Bulgarian competition authority (the Commission for the Protection of Competition (CPC)) adopted a new programme for exemption from and reduction of sanctions for participation in secret cartels (the Leniency Programme). The rules set out in the Leniency Programme apply to cases of secret cartels between competitors in breach of Article 15(1) of the Bulgarian Protection of Competition Act 2008 and/or Article 81 of the EC Treaty.

The Norwegian Ministry of Government Administration and Reform (the Ministry) has proposed changes to the leniency rules contained in the Norwegian Competition Act, as a means of intensifying the fight against cartels.

On 28 October 2008, the Swiss Supreme Court handed down an important ruling in which it extended in some way the scope of legal professional privilege to communications between parties and their in-house solicitors in the context of Swiss competition law. The Swiss Supreme Court confirmed the view, already expressed by some commentators, that privilege extends to protect internal communications involving in-house solicitors from disclosure during competition investigations by the Federal Competition Commission (FCC), provided that such communications have not been made available by the company's corporate bodies to other persons within the company and have been subject to steps by the solicitor concerned to keep the information under his control. Such protection only applies to communications with in-house "solicitors", which is deemed to exclude lawyers who have not completed a bar exam.

On 17 September 2008, the Federal Antimonopoly Service (FAS Russia) imposed a fine on OAO Rosneft in the amount of RBL300,000 for failure to provide information requested by the anti-trust authority.

On 30 May 2008, the Federal Court of Appeal of the City of Posadas, Province of Misiones, overturned a sanction imposed, on 23 October 2006, by the Secretary of Domestic Trade (Secretary) and the National Commission for the Defence of Competition (Commission) against two natural gas supplier companies accused of participating in a market-sharing cartel.

The Turkish Competition Board (the Competition Board) has recently applied the leniency rule for the first time in its Sinyalizasyon investigation. The Competition Board enforced the amended Article 16 of the Act on the Protection of Competition (the Competition Act), and granted immunity to Sinyalizasyon Elektronik İnsaat Sanayi Ticaret Ltd Sti (Sinyalizasyon Elektronik) against fines imposed under the Competition Act.

On 1 February 2008, the Danish Supreme Court dismissed an appeal by Telia Telecom A/S against a lower court judgment which ruled that the company was not entitled to damages from the Danish Competition Authority resulting from an allegedly unauthorised dawn raid.

The Netherlands Competition Authority (NMa) has published the NMa Digital Procedure 2007, in which the NMa indicates how it will inspect and make copies of digital data during and following dawn raids. The aim of the new procedural notice is to make NMa investigations more efficient, while at the same time respecting the rights of the companies under investigation.

On 21 December 2007, the Antitrust Division for the US Department of Justice (DOJ) announced, that it will not appeal the decision by the US District Court in Philadelphia to dismiss the antitrust indictment against Stolt-Nielsen, S.A. (Stolt-Nielsen) and two of its senior executives.

The Tribunal for the Defence of Competition (Tribunal) at the National Institute for the Defence of Competition and the Protection of Intellectual Property (INDECOPI), the Peruvian competition agency, has recognised that it is empowered to impose both behavioural and structural remedies, including requiring the break up or unbundling of assets and activities, on defendants in competition cases.

The South African Competition Commission (the Commission) has published a discussion paper on proposed changes to the Corporate Leniency Policy (CLP).

On 13 September 2007, the Danish Competition Appeals Tribunal handed down a ruling regarding a complainant's right of access to documents in a case before the Competition Authority.

On 4 September 2007, the Brazilian Administrative Council for Economic Defence (CADE) enacted Resolution No. 46, which allows for the settling of cartel investigations through administrative consent decrees. The Brazilian Congress had introduced an amendment to this effect to the Competition Act on 31 May 2007.

The Netherlands Competition Authority (NMa) has, for the first time, imposed a fine of EUR10,000 on an individual for refusing to co-operate with an NMa cartel investigation.

In a move intended to reduce the scope for corruption, the Russian Federal Antimonopoly Service (FAS) intends to end its practice of settling disputes without first initiating court proceedings.

In June 2007, the Czech Competition Office adopted a revised programme on immunity from fines and reduction of fines in cartel cases (the revised leniency programme). The revised leniency programme, which replaces the previous leniency programme adopted in 2001, focuses on providing more guidance to applicants and increasing the transparency of the procedure. The revised leniency programme is also in line with the European Competition Network's Model Leniency Programme. It entered into force on 28 June 2007, upon its publication on the Competition Office's website.

On 15 February 2007, the Hellenic Competition Commission (HCC) published a notice setting out the criteria for the assessment of and decision-making in cases that have been notified to it.

The Russian Federal Antimonopoly Service (the Service) has successfully defended in court its right to conclude settlement agreements with perpetrators. The court will have to approve such an agreement between the Service and Eurocement Group, which has acknowledged implementing a monopolistic price increase last year.

On 12 July 2006, the Secretary of Technical Co-ordination of the Argentinean Ministry of Economy and Production (the Secretary") issued Resolution 26/2006 setting out the new procedure for requesting an advisory opinion on whether a transaction should be notified under Argentinean merger control law.

In June 2006, the Czech Competition Office published a questionnaire inviting opinions from all interested parties (in particular, law offices and leading Czech companies) on how to facilitate actions for damages caused by violations of the competition rules in the Czech Republic.

On 11 May 2006, the Argentine Federal Court of Appeal on Civil and Commercial Matters (the Court of Appeal) ruled on the competence of the Secretary of Technical Co-ordination of the Ministry of Economy and Production (the Secretary) to rule under the Antitrust Law No 25,156 (the Antitrust Law). The case raises new doubts and uncertainties regarding the competent body empowered to decide on mergers and anti-competitive behaviour under the Antitrust Law until the National Tribunal for the Defense of Competition (the Antitrust Tribunal) created by the Antitrust Law is set up.

The Supreme Administrative Court of Finland (SAC) has clarified the status of interviews recorded by the Finnish Competition Authority (FCA) during the cartel investigations. According to the SAC, the recordings must be handled as official documents and, therefore, the parties to cartel proceedings are entitled to have access to the recordings.

On 21 March 2006, the Argentine Supreme Court issued its ruling in the Repsol YPF GLP envasado en la Ciudad de San Nicolás s/ recurso de queja case (the Repsol case) and, confirming a previous resolution by the General Attorney, declared that the National Court of Appeals for Criminal Economic Matters (CACEM) has competence to review antitrust appeals under the Antitrust Law No 25,156 (the Antitrust Law).

At the beginning of February 2006, the Norwegian Competition Authority (NCA) sent warning notices of possible fines to 21 companies for failing to notify mergers and acquisitions within the prescribed time limit. The fines may be as much as NOK 80,000.

The Swedish Competition Authority has held a consultation on proposed new leniency guidelines and on its proposal to abolish the national guidelines relating to merger control.

On 1 January 2006, a new regulation on the duty to provide information and securing evidence entered into force. It provides more detailed information on the Norwegian Competition Act's provisions on the duty to inform, the Norwegian Competition Authority's powers of inspection and treatment of excess information.

On 24 November 2005, the UK Office of Fair Trading (OFT) issued a draft guideline identifying the circumstances in which complainants and third parties should be offered a formal and structured opportunity to comment on provisional findings of investigations before they are concluded (the Draft Guideline). The Draft Guideline also sets out how the OFT intends to conduct this consultation process. Responses to the Draft Guideline are sought by 19 January 2006.

The Hellenic Competition Commission (HCC) has issued a notice on the application of a provision of the new Greek competition law that relates to the power of the HCC to order interim measures.

On 4 August 2005, Order No. 96 of 20 May 2005 (the Order) of Russia's Federal Antimonopoly Service (FAS) entered into force, approving the list of information to be submitted to FAS by undertakings that intend to enter into agreements or use concerted practices.

On 11 July 2005, the Antitrust Commission of the National Institute for the Defence of Competition and the Protection of Intellectual Property (INDECOPI), the first-tier administrative competition authority in Peru, approved a voluntary cease and desist commitment, establishing guidelines that defendants' must meet in order to qualify for leniency.

Following the decision of the Competition Appeal Tribunal (CAT) in Pernod v OFT, the Office of Fair Trading (OFT) has issued a consultation on involving third parties in OFT investigations under the Competition Act 1998.

In two recently published decisions of 9 March and 14 March 2005, the French Competition Council has imposed fines for non-execution of sanctions imposed by a Competition Council decision.

The Secretary of the Federal Competition Commission (FCC) has issued an explanatory note clarifying the FCC's position on a number of issues related to competition investigations that it has been authorised to conduct since 1 April 2004.

On 4 March 2005, the Chairman of the Competition Office confirmed that, during the procedure that culminated in the adoption of a decision imposing a total fine of CZK 120 million on three major bakeries in the Czech Republic for entering into a price-fixing arrangement, Delta Pekarny failed to comply with its obligations to submit to an on-the-spot investigation.

The French Supreme Court has confirmed that French procedural rules are to be applied following a request for interim measures, even when such a request is founded in EC competition law alone.

A US Federal Circuit panel decision recently overruled a lower court and held that Supreme Court precedent mandates that where a party holds a patent over a so-called tying product, a rebuttable presumption of market power can be presumed for anti-trust purposes.

The Portuguese Competition Authority has published for public consultation a draft Complaint Form to be used by third parties to complain about restrictive agreements and abuses of dominance under both EC and national competition law.

Important amendments to the Competition Act merger pre-notification provisions and related amendments to the Notifiable Transactions Regulations came into force on 27th December, 1999. The main changes relate to the waiting periods and information requirements.