Yogurts cartel

This year begins with a Decision 15-D-03 of the French Competition Authority ( 12 March 2015) condemning the members of the Yogurts cartel to a total fine of € 192.7 million.

Yoplait escapes a fine of € 44.7 million as the leniency applicant rank 1, and Senagral gets a reduced fine of € 46 million as a leniency applicant of rank 2. For the others, Lactalis Nestlé scoops of a fine of € 56.1 million, Novandi € 38.3 million, Lactalis Beurre & crême € 4 million, Maîtres laitiers du Cotentin € 22.9 million, Yeo Frais € 12 million, € 8.1 million Laïta, Alsace Lait 3.6 €million, Laiterie H. Triballat € 1.4 million. The lowest fine (€ 300,000) was levied on the Laiterie de St Malo.

This decision constitutes the 10th decision of the French competition authority based on an application of its leniency programme.

Category : Actualité, Procedure Tagged , ,

China

For the first time in the short history of Chinese competition law, one of the three Chinese antitrust autority, the Ministry of Commerce (MOFCOM) has published three decisions regarding mergers and acquisitions, on December 2, 2014.

These decisions are penalty decisions condemning undertakings, a Chinese one, Unigroup, and an American one, Wertern Digital, one for failure to notify the MOFCOM of a notifiable merger and the two other ones for failure to comply with post-merger remedies.

Of course, these decisions are only available  in Chinese, nevertheless, their publication constitutes a noticeable improvement for a better understanding of Chinese competition law enforcement.

For more information, read the chronicle published in IBLJ/RDAI 2015/3

Category : Actualité, BRICS, Contrôle des concentrations, Procedure Tagged , , , , , , ,

EM Lyon-University Lyon III Annual Workshop: Looking for a Balance between Sanction and Damages in Antitrust Law

Since 2009 EM Lyon and the University of Lyon III have organized a series of workshops on competition law and associated economic issues. These workshops bring together experts in law, economics, strategy, marketing and even philosophy. They are led by Professor Anne Tercinet of EMLyon Business School and Professor Cyril Nourissat of the University of Lyon III. Although open to the academic world, these workshops deal with concrete real-world problems.

We are delighted to have Béatrice Espesson, Emilie Dargaud, François Souty, Richard Ruble & Bruno Versaevel participate in our 2014 Workshop “ Looking for the balance between sanction and damages in Antitrust Law”. It takes place on  September 5, 2013, on the campus of the University of Jean Moilin-Lyon III.

Category : Abuse of dominant position, Actualité, International cartels, Conferences & Workshops, Cooperation, Procedure

Nespresso Capsule Copycats

Nespresso was the first company to sell a single-dose coffee espresso machine. At present, the number of French households with single-dose espresso machines covering all brands on the market is more than 25%. Nespresso is the market leader. In 2010, two competitors entered the market with capsules compatible the Nespresso machines. These two competitors on the market of compatible capsules, namely the company Ethical Coffee Company (founded by a former director of Nespresso, Jean-Paul Gaillard) the proprietor of Espresso brand and other own-name brands and the U.S. giant Sara Lee which has since been taken over by DE Masters Blenders (DEMB) owner of L’Or Espresso trademark, both complained to the Autorité de la concurrence (French competition authority).

In 2012, the French market represented 25% of the Nespresso global sales. On this national market, Nespresso enjoyed a market share of 73% on single-dose espresso machines sold. It represented 85% of the Nespresso compatible capsule market. In 2013, the group Mondelez enters this market with its brand Carte Noire.

Nespresso changed its single-dose coffee machines technically several times in order to make competitor espresso capsules incompatible with its product. Legally, Nespresso uses the warranty and the wording on its packaging machinery and instructions to dissuade consumers from using other capsules than its brand. This strategy was reinforced by the B to C media campaign launched by Nespresso.

On the April 17, 2014, Nespresso proposed to the French competition authority three types of commitment over a period of seven years.

- Communicate to all producers of competitive capsules which ask for a technical update of any and all modifications that may have an impact on the interaction between the capsule and Nespresso machine, at least three months beforehand.

- Change Nespresso warranty conditions. Currently we find the following statement: “this machine only operates with Nespresso capsules sold exclusively through the Nespresso Club.” Nespresso proposes to specify that this garanty applies “even and the case Nespresso brand capsules have not been used unless the damage or the malfunction is found to have been caused by the said-capsule”. In the event of litigation, Nespresso will be under the obligation of proof that the damage or malfunction was caused by use of the said capsules.

- No comments are to be made or communicated concerning the competitors’ capsules, regardless of the media support, including Club Nespresso. A compliance program will be put into place by Nespresso in order to implement this commitment effectively and efficiently.

The French Competition Authority carried out a consultation plan with stakeholders. This market sample test which ran between April 17 to May 19, 2014 via internet is presently being analyzed by the Competition Authority. We are waiting for the feedback and decisions of the French authority. We expect the results by the end of July.

Category : Abuse of dominant position, Actualité, Procedure Tagged , , , , , , , , ,

Intel: Exclusive discount qualified as an abuse of its dominant position

Intel had brought an action for annulment against the 2009 decision of the Commission which sentenced Intel to the highest individual fine ever imposed so far by the Commission: €1.06 billion for a single and continuous violation of Articles 82 EC Treaty and 54 EEA Agreement from October 2002 to December 2007. This violation had as its object to oust his rival AMD (Advanced Micro Devices) from the market for x86 CPUs.

In its judgment of 12 June in Case T-286/09 Intel c. Commission, the Court dismissed the case as a whole. Intel having been recognized as enjoying a dominant position in the market in question, the Court described and qualified the conditional rebate granted by Intel as an “exlusive discount”.

For more than five years, Intel had submitted the grant of discounts to the computer manufacturers Dell, Lenovo, HP and NEC, for the exclusive supply of a pre-determined segment or more precisely 80% or more of the x86 processors. Moreover, Intel strengthened the capture of the major computer manufacturers HP, ACER and LENOVO by granting them direct payments to stop or limit the release of products incorporating its rival AMD chips. In addition, Intel granted money to Media Saturn, the computer hardware distributor, conditioned to the fact that it will only sells computers with Intel x86 processors.

Intel justified its action saying that the Commission gave no evidence of real restrictive effects on competition of the so-called conditional rebates. The court dismisses Intel. It ruled that this practice of exclusive discounts by an undertaking enjoying a dominant position has per se, by its very nature, the capacity to restrict competition. So it is unnecessary for the Commission to analyze the real effects produced by these discounts on competition.

Category : Abuse of dominant position, Actualité, Distribution contracts Tagged , , , , ,
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