COMPETITION AND TRADE REGULATION NEWS FROM SPAIN AND THE EU

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1 Table of Contents Antitrust matters: - The National Competition Commission (NCC) gets tough on dawn raids. - The NCC has fined Spain's five main utilities for fixing the prices charged to industrial clients and hindering consumers from switching to independent providers. - The NCC closes, subject to commitments, the proceeding initiated against the performer s collective management organization in connection with unfair and discriminatory tariffs imposed on Sogecable. - The NCC has fined Mediapro and Gol TV Euro 500,000 for abuse of dominant position in the market for resale of the broadcasting rights of Spanish football clubs and in downstream television markets, particularly pay-tv. - The NCC has fined the dominant operator in the postal market, Correos, Euro 4.8 million for breaching a prior commitments Decision related to rebates granted by Correos. - The NCC has closed the formal proceeding initiated against VOCENTO and GODÓ subject to commitments. - The NCC has fined Telecinco Euro 3.6 million for breaching its obligation to submit an action plan to give effect to the commitments adopted in merger decision Telecinco/Cuatro. - The NCC has fined Gas Natural Euro 3.27 million for hindering competition in gas commercialisation for final consumers. - The NCC has fined 15 mussels producers a total of Euro 1.8 million over price-fixing and market sharing. Mergers: - The NCC has approved, with commitments, the merger of REDSYS and REDY. - The NCC has approved, with commitments, the merger of EBRO and DEOLEO. Legislation and consultation documents: - NCC Notice on commitments decisions under Spanish competition law. - NCC Notice on reduced merger control notifications. - NCC issues its annual Report on State aid in Spain. - The NCC has issued its opinion on the preliminary draft of the Distribution Act. - The NCC has issued its opinion on the preliminary draft for the amendment of the Land Transportation Act. Hot Topics of Spain and the EU: - The European Commission Digital Agenda encourages investment in digital networks. - The Football Association Premier League case of the ECJ and the death of Coditel. A key judgement in the pay-tv sector. - EC defends its leniency programme against the uncertainty caused by the Pfleiderer case. - The NCC opens formal proceedings against Microsoft for allegedly restricting the resale of software licenses. - The NCC opens formal proceedings against Dorf Ketal Chemicals (India) Private Limited for gun-jumping. - The NCC opens formal proceedings against ORACLE for possible restrictive practices. - TV operators Antena 3 and La Sexta have resumed negotiations for a possible merger. - Merger between Banco Popular and Banco Pastor: the restructuring of the banking sector in Spain goes on. 1

2 Antitrust behavioural matters The National Competition Commission (NCC) fines Transmediterranea Euro 2.09 million for obstruction to a surprise inspection. The NCC has imposed a heavy fine for conduct by members of inspected company Transmediterranea allegedly obstructing a surprise inspection at company premises. Although it is not the first time the NCC fines a company for obstruction in the framework of dawn raids, the facts of this case look rather surprising. For instance, the NCC finds obstruction in the fact that the CEO was out of the office, when apparently he was attending a conference and would not answer his cell phone (perhaps because it was disconnected, the Decision won t say). Likewise, the NCC states that the inspection was delayed because nobody at the Company would sign the inspection order acknowledging receipt. Is such receipt a condition for a surprise inspection to proceed? If this was the case, then surprise inspection powers would really be handicapped. Third, the NCC states that three hours went by between the request of a company organisation chart and its complete delivery to the inspectors. However, the company appears not to have had that chart readily available does this mean that companies in Spain are bound to have organisation charts or other documents readily available for inspectors under threat of penalty? Finally, it appears that the computer system was down for 45 minutes, which is considered a qualified obstruction by the NCC. The NCC does not appear to bear in mind that this kind of disruptions happen relatively often and may not be attributable to any omission, much less obstructive action by the inspected undertaking. It remains to be seen how courts deal with these facts on review. The NCC has fined Spain's five main utilities for fixing the prices charged to industrial clients and preventing consumers from switching to independent providers (Decision issued on 13 May 2011). On 1 July 2009, regulated tariffs disappeared and domestic consumers and SMEs were able to choose an electricity provider on the free market. On 17 June 2009, the Investigation Directorate of the NCC was informed by the Association of Independent Energy Marketers (ACIE), that Iberdrola Distribución Eléctrica, S.A.U. and Endesa Distribución Eléctrica S.L.U. had sent various communications regarding their suspension of on-line handling of low voltage requests and the cutting-off of operations. Both utilities are members of UNESA, the sector association that brings together the five utilities that represent 99% of the energy marketed to domestic customers. Therefore, the NCC opened a confidential investigation and it discovered that other members of UNESA had sent similar notes. After opening formal proceedings against the five main utilities the NCC adopted urgent interim measures ordering the power companies to enable the requests for supplier-switching. The NCC s Decision considers that the companies members of UNESA have engaged in two anticompetitive 2

3 conducts: (i) agree to refuse to provide data that would enable new entrants to provide services in the free market; and (ii) agree on the prices and other commercial terms and conditions applied to large customers. The NCC Decision considers that in the context of the electricity supply market, any additional obstacle makes it more likely that the customers will remain in the utility to which they are connected. Such practices therefore have the effect of raising entry barriers. This coordination has the additional effect of reducing competitive intensity between the five main utilities. The five utilities and UNESA have been fined: Endesa (Euro 26,615,000), Iberdrola (Euro 21,612,000), Gas Natural Fenosa (Euro 8,811,000), Hidroeléctrica del Cantábrico (Euro 1,847,000) and E.ON (Euro 1,426,000), UNESA (Euro 900,000). The NCC has decided to close, subject to commitments, the proceeding initiated against the performer s collective management organization (AISGE). The proceedings were related to unfair and discriminatory tariffs imposed on Sogecable (Decision issued on 23 March 2011). The commitments finally presented by AISGE redesign the calculation of the tariffs to reflect effective use of its repertoire and have been considered adequate to resolve the anti-competitive effects of the conduct of AISGE; AISGE was under investigation in relation to unfair and discriminatory tariffs imposed on Sogecable for the public broadcasting via television of media works and recordings. In connection with the need of an objective, reasonable and fair justification of AISGE s remuneration demands, AISGE has proposed a general calculation system that attempts to reflect closely the actual use by each user of a defined and known catalogue. AISGE has also proposed general criteria to evaluate the use of the catalogue. AISGE will modify its general tariffs applicable to all categories of public broadcasts in accordance with a remuneration system based on the principle of actual use or utilisation. In order to increase transparency, AISGE also undertakes to give users access to a computer database containing information about the artists it represents, the typology of audiovisual recordings, as well as data on agreements signed with foreign entities. The NCC has fined Mediapro and Gol TV Euro 500,000 for abuse of dominant position in the market for resale of the broadcasting rights of the Spanish football clubs and in downstream television markets, particularly pay-tv (Decision issued on 17 March 2011). Mediapro holds the broadcasting rights for the Spanish first division league (Liga) and King's Cup (Copa de S.M. el Rey) for 2009/2010 and subsequent seasons. Therefore Mediapro has a dominant position in the market for the resale of broadcasting rights. Furthermore, Mediapro is present in the free and pay TV markets through La Sexta and Gol TV. 3

4 In May 2009 the NCC learned that Mediaproducción S.L. (Mediapro) had bundled different packages of TV broadcasting licences for football matches and highlights of the Liga and Copa de S.M. el Rey football competitions for the 2009/2010 to 2011/2012 seasons, and invited certain TV operators to submit offers within a brief time frame. Subsequently, Canal Satélite Digital, S.L. (Canal Satélite) filed a compliant against Mediapro for refusing to supply the signal for the regular Liga and Copa del Rey football matches for pay-per-view (PPV) broadcast in Spain, because Mediapro tied the supply of the signal to the sale of Mediapro's Gol Bar service, specifically aimed at hotels, restaurants, bars and cafeterias. On 3 September 2009, the NCC opened formal proceedings against Mediapro and its subsidiary Gol Televisión, S.L. (Gol TV) for anticompetitive practices contrary to Articles 1 and 2 of the Spanish Competition Act (SCA) and Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU). According to the NCC, the licensing system set up for reselling and exploiting the broadcast rights for Liga and Copa del Rey football matches was not sufficiently transparent, objective and fair on all of the companies bidding for rights for football league games. The NCC concluded that Mediapro has hampered competition in the resale market of audiovisual broadcasting rights and downstream television markets, particularly the PPV, discriminating the operators access to rights. Furthermore, the NCC considers that Mediapro placed its own subsidiary Gol TV at an advantage in the bidding for broadcasting rights. Consequently, the NCC has fined Mediapro and Gol TV jointly and severally Euro 500,000 for an abuse of dominant position. The NCC has fined Correos for breaching a Termination by Commitments Agreement (Decision issued on 13 May 2011). The NCC has fined the former postal monopoly company (Correos) Euro 4.8 million for infringing the commitments Decision (Agreement) reached in Case 2458/03, in which the CNC investigated predatory pricing practices by Correos in relation to services provided to clients with postal needs exceeding Euro 100,000 per year (Big Clients). The Agreement included commitments related to the provision of postal services for Big Clients, in order to ensure that the costs of the provided services were covered after Big Client discounts are applied. In the framework of the monitoring of the Agreement, the NCC detected that Correos was infringing the terms of the commitments by giving discounts to some Big Clients without covering the costs of the provided services, and therefore incurring again- in predatory pricing, as established in its Decision of 23 August The NCC has closed with commitments the formal proceeding initiated against VOCENTO and GODÓ (Decision issued on 30 June 2011). 4

5 On 30 June 2011 the NCC has decided to close a formal proceeding opened ex officio against Corporación Vocento S.A.U. and Vocento, S.A. (VOCENTO) and Publipress Media, S.L.U. and Grupo Godó de Comunicaciones S.A. (GODÓ) for possible restrictive practices under Article 1 SCA. The practices consisted in agreements between competitors regarding joint commercialization of printed press publicity spaces at commonly agreed prices and rebates and with a joint sales team and invoice system. The agreement could restrain competition by eliminating price competition between the Sunday s supplements and reducing advertisers choice. It also could favour access to sensitive commercial information and marketing strategies. VOCENTO and GODÓ committed to independent selling so that a client willing to buy a joint product will have to pay the sum of individual prices established independently by each party. The NCC has fined Telecinco Euro 3.6 million for breaching its obligation to submit an action plan giving effect to the commitments adopted in the Telecinco/Cuatro merger Decision of 27 July The approval of the merger between TV operator Gestevisión Telecinco, S.L. (Telecinco) and Sociedad General de Televisión Cuatro S.A.U. (Cuatro) was approved subject to conditions. The merger Decision requested Telecinco to present within a month an action plan and timetable for the implementation of those conditions. Telecinco failed to fulfil the NCC requirement within the term and, hence, the NCC has fined Telecinco Euro 3.6 million. The NCC has fined Gas Natural Holding for hindering competition in gas commercialisation for final consumers (Decision issued on 27 July 2011). On 2 December 2009 the Investigation Direction of NCC opened a formal proceeding against Gas Natural due to possible anticompetitive practices consisting of hindering access to the natural gas supply market by refusing to process suppliers change requests made trough sound recordings. The NCC received a complaint from Iberdrola. By its decision the NCC Council considers contrary to competition the conducts developed by some Gas Natural subsidiaries between 2007 and A first conduct consisted in refusing to process suppliers change requests from Gas Natural clients submitted by Iberdrola pursuant to a market campaign launched by the latter consisting of capturing clients by telephone and recording the conversations which were later presented to Gas Natural in electronic records. Gas Natural refused to process the requests alleging the sound recordings were not a valid support even when the Ministry of Industry has issued its opinion favouring any support system that allows verification. A second conduct took place in 2009 when Gas Natural was losing clients and 5

6 it subsidiary Gas Natural Comercial began a campaign consisting of sending letters to its costumers attempting to deter those clients from switching supplier. The NCC has fined 15 mussels producers a total of Euro 1.8 million over price-fixing and market sharing (Decision issued on 26 April 2011). On October 2008, the NCC received a complaint from the National Association of Canned Fish and Seafood Manufacturers (ANFACO) against various organizations of mussel producers in Galicia. As a result of the investigation, the NCC opened formal proceedings against the mussel producers organisations for a possible breach of Article 1 SCA and Article 101 TFEU, consisting of price-fixing, market sharing and agreeing common commercial terms and conditions in connection with mussels cultivated in Galicia between The NCC Decision has considered that, since at least 1997, these organizations of mussel producers have coordinated the commercial conditions applied to the sale of mussels. They have used a number of different methods including bilateral or multi-lateral meetings. These entities have also organised the sharing of orders and, at certain times of stronger coordination, they have centralised sales as an additional mechanism to sustain price fixing. In order to ensure that these agreements functioned correctly, they frequently employed control mechanisms which have from time to time resulted in boycotts to other producers that did not follow the agreements. The NCC has therefore decided to impose the following fines: Euro 901, on OPMEGA; Euro 479,000 on FARN; Euro 118,500 on AGAME; Euro 118,500 on AMEGROVE; Euro 42,000 on Illa de Arousa; Euro 48,500 on SOCOMGAL; Euro 39,500 on AMC; Euro 30,000 on Cons de Udra; Euro 6,000 on A Boirense; Euro 2,500 on San Amaro; Euro 2,000 on Amevila; Euro 1,600 on Egrome; Euro 1,500 on APROMAR; Euro 1,000 on Seixo and Euro 600 on Xidoiros. Mergers The NCC has approved, with commitments, the merger of REDSYS and REDY. The merger of Redsys Servicios de Procesamiento (RESDYS) and Redes y Procesos (REDY), two payment processing companies was notified to the NCC on 16 August The NCC decided on October 2010 to open phase 2 proceedings because it took the view that the operation could hinder the maintenance of effective competition on the Spanish markets for the provision of card payment processing services and card payment services. According to the Decision, the operation represented a reduction in the number of operators from three to two. This, coupled with the major entry barriers that existed, gave rise to a serious risk of excessive or discriminatory rates for nonshareholder customers or shareholders not sponsoring the operation, a risk increased by the lack of transparency regarding merged entity s fee structure. 6

7 The NCC considers that the merger has the risk of a unilateral alteration of standards and procedures which allow interoperability between all members of the payment chain. Regarding card payment services, the fact that the main shareholders of the merged entity are in turn the main Spanish banking institutions, linked to two (SERVIRED and 4B) of the three country-wide payment systems; the risk of coordination could prejudice financial institutions, other payment systems and end users. In addition, the method of operation of the new entity could encourage anticompetitive exchanges of information between SERVIRED and 4B. Regarding the market for card payment processing services, the parties have committed that they will serve payment service providers on a nondiscriminatory basis. In terms of the technical barriers to interoperability of the payment transactions, the notifying parties have committed that they will not unilaterally intervene in the alteration of the standards and procedures which allow interoperability between all members of the payment chain. In relation to the market for card payment services and regarding the risk of coordination between SERVIRED and 4B, the parties also agreed that their bank shareholders, SERVIRED and 4B, would not form part of the merged entity's governing board. In terms of the risk of sensitive information exchanges between SERVIRED and 4B, neither the Board of Directors nor the shareholders have access to information on individual customers. In order to give the proposed system an additional independence mechanism, REDSYS and REDY have given a commitment that responsibility for ensuring compliance with the commitments rests with an external auditor with no connection to REDSYS. The commitments have been established for an initial period of three years, extendable for further two years if the market circumstances that made the commitments necessary have not changed. The NCC has approved, with conditions, the concentration of the companies EBRO and DEOLEO. (Press release of 5 September 2011). The merger consisting of the acquisition by EBRO FOODS, S.A. (EBRO) of DEOLEO, S.A. (DEOLEO) formerly SOS COPRPORACION ALIMENTARIA, S.A. (SOS) - rice business assets leads to the concentration of the two main operators in transformation and wholesale rice, for its commercialization with manufacturer brand (CMB) and retail. After consulting affected operators the NCC concluded that the merger could: - lead to the disappearance of EBRO S main competitor which could lead to price increases and R+D activities reduction. - Increase coordination risks by aligning distributor s interest with those from the resulting CMB provider leading to price increases and reducing intra- 7

8 brand competition as there will be only one CMB provider. - Reinforce EBRO s position to impose prices to its providers (mainly farmer cooperatives) as well as limiting or making the access to raw materials more expensive for its competitors. In July, EBRO presented commitments to resolve competition issues, some of them were considered insufficient by the NCC and others were market tested. In August, EBRO proposed a final commitments package approved by the NCC which comprises among others the disposal of four brands (La Parrilla, La Cazuela, Nobleza y Pavo Real) and granting a ten years exclusive licence of Nomen brand with a purchase option for all the products and territories were the licence has effects. Nomen is a trademark which is seen as capable of exerting competitive pressure, whereas the other mentioned divestments seek to favour new entry. Soft law and Studies Notice on termination of antitrust infringement procedures by means of commitment Decisions. The NCC is making an increased application of the provisions of the Competition Act enabling termination of procedures by means of commitment decisions. In the last years these procedures have been used in a number of matters ranging from abuse of dominance cases in the postal sector to collective recommendations in the professional services markets. The NCC provides a number of guidelines. Some of them are already clear in the regulation or the administrative practice of the NCC (e.g., the procedure is formally initiated by the NCC upon request of an accused party). In other areas, the NCC attempts to cast some light on the circumstances under which commitments decisions are not appropriate, e.g., in cartel cases, in conducts that have had an irreparable impact for a long time, in situations of recidivism. The commitments offered must be effective and easy to monitor. Notice on reduced form notifications. The NCC attempts to provide guidelines on which merger cases are suitable for reduced form notification. There are a number of statements where the NCC does nothing other than remind its usual practice and/or its statutory powers. The NCC also (informally and without providing details) states that reduced form filings are processed quicker than standard filings and that the one-month statutory deadline for phase 1 mergers is often not met. This is true although the time-savings are not always substantial, particularly if the filing coincides with a holiday period (e.g., month of August is particularly slow as are the Christmas and Easter weeks). More interestingly, the NCC confirms that the instances in which a reduced form may be used according to the applicable regulation are not numerus clausus, thus opening the door to attempting a reduced filing in other cases (which is great, but may not always be straightforward and in fact the NCC in its Notice states that in these non- 8

9 contemplated cases it will be necessary to argue accordingly and the NCC has the last say hence, ultimately, the NCC indication may not be very practical). The NCC reminds that is entitled to request full notification forms even where a merger qualifies for reduced filing form. This is something that the NCC indeed does sometimes. The NCC sheds some clarity and states that (other than the cases foreseen in the regulation) the NCC will not accept reduced form filings in cases requiring an opinion on the merger from the sector regulator (e.g., energy, telecommunications and banking mergers). This is useful although earlier guidance on these matters would have been appreciated. NCC issues its annual Report on State aid in Spain. In 2009, Spain has granted State aid for value of Euro 13,183 million. Like in the rest of the EU, the volume of State aid has increased substantially due to the impact of the crisis. Contrary to conventional wisdom, the volume of State aid is comparably smaller in Spain than in other Member States as a percentage of GDP (0.7% in the case of Spain in contrast with 3% of GDP in the whole of the EU, netting in both cases the aid to mitigate the financial crisis). France and Germany are the largest providers of State aid by a large margin. The NCC Study provides some useful information on sectors such as transportation. In fact, this year s State aid Report contains a thorough study of aid in the airline sector. The NCC has issued its opinion on the preliminary draft of the Distribution Contracts Act (DCAPD) (Opinion of 4 July 2011). The current regulation regarding distribution contracts is contained in the Civil and Commercial Codes and some special legislation. The DCAPD aims to modernize the distribution laws according to the new economic context and the legislation of surrounding countries. It also aims to improve transparency and promote competition balancing the parties relative positions. Another objective is to establish an environment of collaboration, dialogue and mediation to reduce the actual amount of litigation. This preliminary draft contemplates a general regime which applies in the absence of agreement between the parties. The preliminary draft establishes mechanisms to balance the parties bargaining positions providing for minimum content to the agreements. The NCC considers that this preliminary draft presents some inconsistencies with EU law, in particular with Commission Regulation EU nº 330/2010 of 20 April 2010 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to categories of vertical agreements and concerted practices (RCRVR). The DCAPD contains some provisions allowing some conducts that could be forbidden by the RCRVR. In order to clear any possible doubts, the NCC recommends that a general provision should be included in the law stating that, despite the provisions on 9

10 distribution agreements, the parties shall always abide by competition law. The NCC detects an unnecessary overregulation that limits in excess the parties freedom. The NCC finds this limitation disproportionate given that the imbalance between the parties does not necessarily imply a relationship of dependence. The main limitations detected by the NCC are: (i) restriction on the suppliers distribution options, (ii) rigid regulation allows the mutual knowledge between operators and therefore access to relevant commercial information; (iii) excessive standardization of conditions. The NCC has issued its opinion on the preliminary draft for the amendment of Law 16/1987, of 30 July, for the Land Transport Planning Act (DLTPA) (Opinion of 6 July 2011). On 4 July 2011 the NCC issued its opinion on the DLTPA which is currently being processed in Parliament. The DLTPA aims to adapt the existing EU legislation on rail and road transportation services. The NCC considers that certain access requirements included in the draft law are not clearly justified. It also considers that the DLTPA does not remove some current issues which are not contrary to EU legislation but unnecessarily hinder market competition, giving as an example the authorization required for the 2 to 3.5 tons transport vehicles which is not required by EU Regulation nº 1071/2009. Regulation No 1370/2007 establishes that tenders for administrative concessions regarding road and rail passenger transport shall be non discriminatory between bidders. However art 74.2 of Law 16/1987, of 30 July, for the Land Transport Planning Act foresees that in case of similar bids, considering similar bids those which differ only 5% from the total score, the current concession holder has preference. The NCC considers that that preference reduces competitive tensions in favour of the current concession holder. The NCC has held in many reports the necessity to derogate such a preference, opinion that has been upheld by the courts, which have declared that bidding condition void. The NCC considers it convenient to review the concession holder preference issue in the DLTPA. Hot Topics of Spain and the EU European Commission (EC) Digital Agenda encourages investments in digital networks. The EC s Digital Agenda Commissioner, Neelie Kroes, has called for lower prices for alternative telecoms operators seeking to sell services over existing copper networks, although incumbents that commit to switching over to fibre infrastructure may be allowed to maintain their whole sale rates. EC s approach aims at lowering copper prices in areas where incumbents legacy copper networks persist for some time without significant fibre investment and creating an incentive for incumbents to replace old copper networks with new fibre infrastructure. 10

11 On this regard, the EC has launched two public consultations. These consultations are part of EC s desire to boost the Single Market for telecoms services by ensuring consistent and coherent approaches to regulating telephone and broadband networks in all Member States, and reassuring markets that putting money into fibre networks is a safe and profitable investment. The first consultation concerns nondiscriminatory access for alternative operators to the infrastructure and services of dominant telecom operators and the second concerns the way national regulators calculate prices that operators have to pay for this wholesale access (cost-orientation remedies). Both consultations are open to telecoms operators, consumer organisations, national regulators, Member States and other interested parties until 28 November. The Football Association Premier League case of the ECJ and the death of Coditel. On this judgement, the ECJ deals with two preliminary references related to the unauthorised use in Member State X of coded signal designed for use on another Member State Y. In summary, the ECJ finds that a decoder re-imported from one Member State to another is not an illicit device. National law restricting the imports of those decoders is against the Community freedom to provide services. Furthermore, the imposition of an obligation on a licensee not to sell decoders that enable access to the media content outside the licensed territory is contrary to Article 101 EC Treaty. This is where some apparent inconsistency with the old Coditel case law arises with the ECJ distinguishing this case from Coditel because in the actual case the owners of the affected rights receive adequate remuneration and grant consent. In summary, the ECJ follows a longstanding tradition of EU integrationism which prevails over efficiency considerations based on output maximisation (where well-devised discrimination may be output enhancing, as many commentators have reasoned, e.g., Bork, The Antitrust Paradox). It remains to be seen whether this judgement affects Europe-wide IP licensing schemes, which will now have to be revised in light of this judgement, particularly if they provide for a network of individual licenses for individual Member States. The EC defends its leniency programme against the uncertainties of the Pfleiderer case. EC s Competition Commissioner, Joaquín Almunia, has stressed he will protect European leniency programmes against the uncertainty deriving from the European Court of Justice in the Pfleiderer Case, by trying to find the right balance between protecting effective enforcement and allowing victims to pursue their legitimate right for damages. The European Court of Justice issued a Judgement (Judgment of 14 June 2011, Pfleiderer, Case C-360/09) on a preliminary ruling from a national court, 11

12 on a key matter regarding antitrust damages claims. The situation encountered by the national court, in essence, referred to a petition by a party harmed by a cartel (in the context of a damages claim) to have access to the leniency application that one of the members of the cartel filed with the German Competition Authority. The Court did not provide a conclusive answer to the question posed because procedure related to damages claims is a matter of national law and left the question unanswered, subject to verification of a balancing test on a case-by-case basis. However, the Court provided valuable guidance to national courts by pointing out the interests at stake to be weighed by a given national court when issuing its decision on this type of matter. Although this concerns national leniency programmes, it may have an impact on the European Competition Network and the leniency procedure of its members and the EC. Therefore, the EC has indicated it will try to tackle the uncertainty created by the case by case analysis that a national court shall have to carry out on whether to disclose a leniency submission or not, by creating new soft-law or even hard-law. The NCC opens formal proceedings against Microsoft for allegedly restricting the resale of software licenses. (Press release of 20 September 2011) The investigation has been triggered following a complaint submitted by the company Elegant Business. According to the press release, Microsoft would be allegedly obstructing or impeding the resale of licences of its software. The NCC now has 18 months to find out if Microsoft is abusing its dominant position in the PC operating systems and/or breaching the prohibition on anticompetitive agreements. The NCC opens formal proceedings against ORACLE for possible restrictive practices. (Press releases of 29 July 2011) The NCC has opened formal proceedings against Oracle Corporation and Oracle Corporación Ibérica, S.A. (ORACLE) for possible anticompetitive practices consisting in abusing its dominant position regarding relational databases. The NCC received a complaint from Hewlett Packard Company and Hewlett Packard Espanola, S.L. (HP) for an infringement of Article 2 of SCA and Article 102 TFEU. As a result of the investigation, the NCC has had access to information which may point out to the existence of evidence that ORACLE has breached Article 2 SCA and Article 102 TFEU for abuse of dominant position. The practices are a consequence of ORACLE s decision to suspend all its Intel Itanium processor developments that are used by HP s Integrity servers, leading to an unjustified refusal for services provision. The practices could also derive from price policy changes in enterprise relational database management systems from December 2010 leading to an abusive discrimination. 12

13 The NCC opens formal proceedings against Dorf Ketal Chemicals (India) Private Limited for a failure to comply with the notification obligation prior to implementing a concentration. (Press releases of 21 March 2011) On March 2011, the concentration between Dorf Ketal Chemicals AG, a subsidiary of Dorf Ketal Chemicals Private Limited (India) (Dorf) and E.I. du Pont de Nemours & Company (E.I.) was notified to the NCC. The merger consists of the acquisition by Dorf of the exclusive control over the assets used for E.I in the business of special catalysts for chemical and fluorinated products. The acquisition took place on 31 December 2009, i.e., prior to the notification and approval under case C/0342/11 Dorf Ketal/Dupont. Therefore the NCC decided to open formal proceedings against Dorf Ketal Chemicals (India) Private Limited for a possible breach of the prohibition against gun-jumping. TV operators Antena 3 and La Sexta have resumed negotiations for a possible merger. Due to the current economic crisis and the reduction of publicity revenues is forcing smaller operators to merger. If the merger between Antena 3 and La Sexta takes place it will cause concentration in the television market, where almost 85% of advertising revenue would be in the hands of only two holdings: Mediaset, formed by Telecinco and Cuatro, which during this year has achieved 43% of television publicity, and Antena 3 (30%) and La Sexta (11%) which will have 41% of the television publicity market, adding a total of 85%. Among the uncertainties caused by the merger process is the possibility of jointly selling advertising space, something the NCC did not allow in the recent Telecinco and Cuatro merger, and thus, reducing synergies possibilities between the group. In the current environment, all analysts agree that this merger would make sense. However, the discussions have already lasted long and the information in the press is rather erratic, some days saying the merger is imminent, later contradicting that (see, e.g., actualidad/noticias/antena3-y-la- Sexta-reanudan-conversaciones-sobresu-fusion html). For any queries or discussion regarding the above you may contact Partner Pedro Callol or Associates Jorge Manzarbeitia Manuel Cañadas ROCA JUNYENT C/ José Abascal, Madrid Spain Switchboard: Fax: