Archive for the 'Competition Law' Category
The European Commission announced earlier today that it was opening formal proceedings to investigate sales of e-books. In particular, the Commission has opened a cartel investigation to determine whether several international publishers, including Hachette Livre, Harper Collins, Simon & Schuster and Penguin have engaged in anti-competitive practices with respect to the sale of e-books.
In making the announcement, the Commission said in its news release:
“The European Commission has opened formal antitrust proceedings to investigate whether international publishers Hachette Livre (Lagardère Publishing, France), Harper Collins (News Corp., USA), Simon & Schuster (CBS Corp., USA), Penguin (Pearson Group, United Kingdom) and Verlagsgruppe Georg von Holzbrinck (owner of inter alia Macmillan, Germany) have, possibly with the help of Apple, engaged in anti-competitive practices affecting the sale of e-books in the European Economic Area (EEA), in breach of EU antitrust rules. The opening of proceedings means that the Commission will treat the case as a matter of priority. It does not prejudge the outcome of the investigation.
The Commission will in particular investigate whether these publishing groups and Apple have engaged in illegal agreements or practices that would have the object or the effect of restricting competition in the EU or in the EEA. The Commission is also examining the character and terms of the agency agreements entered into by the above named five publishers and retailers for the sale of e-books. The Commission has concerns, that these practices may breach EU antitrust rules that prohibit cartels and restrictive business practices (Article 101 of the Treaty on the Functioning of the European Union – TFEU).”
In a small stroke of serendipity, I bumped into Paul Crampton here in Vancouver last week, who is on the Tribunal hearing the Commissioner’s challenge of the CCS Corporation / Complete Environmental waste merger (a merger to monopoly case and the first fully contested merger case before the Tribunal in six years).
In chatting with Paul, now a Federal Court judge and known in the competition bar for a variety of clever turns of phrase, such as raising a finger in the air and rhetorically requesting that a thorny legal or economic issue be “decoded” (usually for the benefit of others in the room less learned than Paul in such matters), I threatened to quote him on my blog.
It just so happened that the previous day, in working through a product market definition question, I had come across one of his quotes from his 1990 book on mergers.
So, as threatened, here is the quote, which I thought rather a fine one by Paul on the geeky topic of market definition in competition/antitrust law cases (and rather apropos following my bumping into him after he had heard argument in the BC waste merger case):
“The importance of preparing a well articulated argument in support of one’s view of the ‘relevant market’ in the context of a competition law case cannot be overstated. Put succinctly, the party who manages to convince the court of his view of this matter generally wins the case, because as the purported market is enlarged, the relative significance of the merging parties within the market usually decreases. Conversely, as a market is defined progressively more narrowly, the competitive significance of challenged conduct typically increases.” (Paul Crampton, Mergers and the Competition Act (Toronto: Carswell, 1990)).
We wish Paul and the Tribunal all the best of luck in “decoding” the waste merger.
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Bloomberg has reported that federal Industry Minister Christian Paradis has again raised the prospect of amending Canada’s Investment Canada Act (the “ICA”) in remarks he made in New York last week (see: Canada Open to Changing Foreign-Takeover Law, Paradis Says).
The Industry Minister’s comments closely follow a C.D. Howe Institute report also issued last week calling for fundamental changes to the ICA to stimulate foreign direct investment in Canada, including a change to the overarching test for foreign investment approval (replacing the current “net benefit to Canada” test with a national interest test) (see: New Publications – C.D. Howe Institute Report – Reforming the Investment Canada Act: Walk More Softly, Carry a Bigger Stick).
On December 1, 2011, the C.D. Howe Institute issued a report on the Investment Canada Act entitled Reforming the Investment Canada Act: Walk More Softly, Carry a Bigger Stick, authored by Philippe Bergevin and Daniel Schwanen.
Earlier today the Supreme Court of Canada, per Justices LeBel, Fish and Cromwell, granted leave to appeal in the Pro-Sys Consultants Ltd. v. Microsoft Corporation and Sun-Rype Products Ltd. v. Archer Daniels Midland Company cases.
These cases relate to conflicting indirect purchaser class action certification decisions in British Columbia (two companion decisions of the British Columbia Court of Appeal) and Quebec (a recent decision of the Quebec Court of Appeal).
The Commissioner of Competition, Melanie Aitken, addressed current enforcement priorities in two engaging and wide-ranging talks in Vancouver this evening: a keynote speech at a reception hosted by the University of British Columbia, National Centre for Business Law at the Four Seasons and a Vancouver Competition Policy Roundtable meeting organized by Professor Tom Ross of the Sauder School of Business.
TMX News Release (November 29, 2011)
“The Commissioner advised Maple and TMX Group that she has serious concerns about the likely competitive effects of the proposed transactions in the current environment, primarily in connection with equities trading and clearing and settlement services in Canada.
The Commissioner indicated that she has not reached a final conclusion and that her current views may be affected by further factual information and developments, which may include changes in the applicable securities regulatory regime, and any commitments or other remedial measures that Maple may be prepared to take to address her concerns.
Maple and TMX Group intend to continue to work closely with staff of the Competition Bureau to address the Commissioner’s concerns, including by identifying appropriate remedial measures. As Maple has stated previously, it is committed to working constructively with all of the relevant regulators, including Canadian securities regulators, to address any questions they may have so that the proposed transactions can proceed in the best interests of TMX Group, its shareholders and the Canadian capital markets. Maple and TMX Group continue to strongly believe that the proposed transactions will substantially benefit all capital market participants.”
In a short but interesting recent note, Madam Justice Sandra J. Simpson has proposed changes be made to the federal Competition Tribunal. In an article entitled “The Competition Tribunal 2003-2011 and Beyond”, the Federal Court judge, who sits on the Competition Tribunal, recommendeds that the Tribunal’s jurisdiction should be expanded to include the following:
1. Single damages for parties in private actions;
2. Private actions for abuse of dominance with leave (to which Justice Simpson adds that the Tribunal has exercised its power to grant leave to private parties responsibly);
3. A reference power for parties in negotiations with the Commissioner; and
4. The approval of consent agreements by a judge alone – with written comments from but no intervention by affected parties (which, in Justice Simpson’s view, will “ensure that the Commissioner has a defensible theory of harm to support his or her settlements”).
Templates/precedents and checklists to run promotional contests in Canada
Templates/precedents and checklists to comply with Canadian anti-spam law (CASL)
