GCR 100 2021

CMS

CMS

Professional notice

Belgium

Partners Annabelle Lepièce and Dirk Van Liedekerke continue to co-chair the Belgian antitrust group at CMS. They lead a team of eight associates who represent local telecommunications company Proximus in interim measures proceedings launched by the BCA as well as the agency’s ongoing investigation into the company’s mobile network sharing agreement with Orange.

The firm is advising FIFA in the Doyen Sports and Seraing cases before courts in Brussels and Liège, which are challenging the legality of the football association’s policy that prohibits third-party ownership. CMS is also guiding French electronics chain Boulanger in its purchase of appliances retailer Krëfel group, which was cleared without remedies by the BCA in November 2019.

Czech Republic

Partners Tomas Matejovsky and Libor Prokes lead a team of two competition associates at CMS in Prague. Both practice co-heads spend less than 50% of their time on competition, with Matejovsky also heading the commercial, regulatory and disputes team and Prokes specialising in real estate. Nevertheless, the team advised Sev.en Energy on its €280 million acquisition of two Czech coal-fired power plants based in Kladno and Zlín from Alpiq, which was unconditionally cleared by the antitrust authority in July 2019 following a Phase I review. The group also acted for Československá obchodní banka – the country’s leading bank – in its €240 million acquisition of a 45% stake in Českomoravská stavební spořitelna from Bausparkasse Schwäbisch Hall. The Czech enforcer approved the deal in May 2019 following a Phase I review. Vodafone tapped the firm to steer its €14 million damages claim against O2 for abusing its dominance by charging excessive prices for wholesale broadband services. Vodafone filed its claim with the Municipal Court in Prague in 2015, and the claim is still before the first instance court.

Germany

CMS houses one of Germany’s biggest antitrust teams, which includes 13 partners and 22 associates. Its competition practice in Germany benefits from the firm’s vast global network, allowing it to handle cross-border and multi-jurisdictional cases. Markus Schöner leads the team, which includes the highly respected Harald Kahlenberg and litigation specialists Tim Reher and Michael Bauer. The firm considers itself as one of the “go-to” practices in Germany for cases in regulated sectors, such as energy and pharmaceuticals.

Merger control work keeps the firm’s sizable practice busy. It advised Atlas Copco in the Federal Cartel Office’s probe into its acquisition of dispensing system manufacturer Scheugenpflug. The acquisition was announced in October 2019, and the companies completed the deal in January 2020. The team also advised electromechanical manufacturer AMETEK on its acquisition of Gatan from Roper Technologies. The deal was notified to the FCO and unconditionally cleared in 2019. In behavioural work, Kahlenberg leads the team advising drugstore chain Rossmann in its appeal against a €30 million resale price maintenance fine from the FCO. The Federal Court of Justice overturned the fine in 2019 and sent the case back to the Higher Regional Court of Düsseldorf for reconsideration. Bauer also represents Johnson & Johnson in multiple antitrust damages actions brought by chains and retailers for its role in a Drugstore Products cartel.

Netherlands

The team at CMS NETHERLANDS is led by Edmon Oude Elferink, who is based in Brussels, alongside counsel Robert Bosman and two associates. Senior associate Annemieke Hazelhoff and associate Merle Temme work with the team from Amsterdam. The firm represented Dutch professional football clubs SC Cambuur and BV De Graafschap in their bid for an injunction to stop the national football association from ending the 2019 to 2020 season over the covid-19 pandemic. The clubs claimed the association abused its dominance, but a district court ruled against them in June 2020. The firm is defending Japanese airline All Nippon Airways against follow-on damages claims related to the Air Cargo cartel in a case currently pending before the European Court of Justice as a preliminary reference. In merger control, the firm assisted car importer Pon on its acquisition of joint control over car dealer company Muntstad, which the Dutch authority cleared unconditionally in January 2020 after a Phase I review.

Poland

CMS CAMERON MCKENNA’s Polish competition team is headed by Małgorzata Urbańska, who is supported by six associates. The firm advised global cosmetic and body care producer PZ Cussons on the sale of its brand Luksja to Greek competitor Sarantis Group, which the Polish enforcer cleared in February 2020 following a Phase II review. The team also represented Grupa Azoty Polyolefins – a joint venture by Grupa Azoty, Hyundai Engineering, Korea Overseas Infrastructure & Urban Development Corporation and Lotos Group – to construct polypropylene plants, which the authority cleared in January 2020 after a Phase I probe.

The group successfully acted for mobile operator P4/Play in appealing against the authority’s 2011 decision to fine it and three rivals – Orange, T-Mobile and Plus – for engaging in a refusal-to-buy cartel. The decision was appealed up to the Supreme Court, which in October 2019 overturned the authority’s decision. CMS is also representing the rail equipment division of Bombardier in its appeal against the authority’s decision in 2015, finding that the company rigged bids for designing and constructing an integrated rail traffic control system between Warsaw and Radom on a tender issued by Poland’s railway infrastructure manager PKP. Bombardier challenged the decision before the Court of Competition and Consumer Protection, which overturned the enforcer’s decision. That decision was subsequently upheld by the Court of Appeal in July 2018, although the agency has now asked the Supreme Court to hear the currently pending case.

Portugal

The competition practice at CMS in Lisbon is chaired by Luís Romão, who is supported by senior associate Andrea Baptista. The firm says it is one of the most experienced in reaching settlement agreements with the national authority and in judicially challenging the enforcer’s infringement decisions. The team represented railway operator Futrifer in the authority’s investigation into a cartel in the market for maintenance services for track equipment. The agency fined Futrifer €300,000 as part of a settlement. The group assisted HCapital in notifying its acquisition of control over Solzaima, which the authority approved in Phase I in March 2019. The firm is also acting for the same private equity firm in a subsequent gun-jumping probe opened by the authority, which the firm says is one of the first cases in Portugal where the authority is pursuing a company for not notifying a deal that should have been notified under market share thresholds. Additionally, the team advised VINCI Energies Portugal on its acquisition of Sotécnica and Novabase Digital, which the authority respectively approved in Phase I in August 2019 and December 2019.

Russia

The competition team at CMS RUSSIA is led by partner Maxim Boulba, who is assisted by four associates. The team acted for Dufry International on its joint venture with Russian duty-free shop owner RegStaer, which the FAS cleared. It also advised RESO-Garantia on its acquisition of ERGO Insurance, which involved the acquisition of ERGY’s non-life business in Russia. Spain-based Urbaser, a major player in the environmental management sector, became a first-time client for the firm when it sought antitrust counsel on its joint venture with an unnamed Russian partner. Urbaser is entering the Russian market to help modernise the waste management system in various regions. CMS secured an additional merger clearance for Vestas on its joint venture project with Rusnano in the renewable energy sector. The firm also continues to provide ongoing antitrust advice to some major companies, including Maersk on its various projects in Russia. German automotive parts company Continental Automotive tapped CMS for advice on the competition law issues related to its distribution arrangements. For Boehringer Ingelheim, the team advised on general competition-related matters linked with its distribution and public procurement activities in Russia.

Spain

The competition practice at CMS ALBIÑANA & SUÁREZ DE LEZO is led by Carlos Vérgez, who was recently named a non-government adviser to the International Competition Network. He is assisted by counsel Aida Oviedo, while associate Miguel Orellana completes the team. The Spanish team worked with colleagues in the firm’s German office to coordinate merger filings for Acciona’s increased stake in Nordex from 29.9% to over 50%. It also advised global investment funds Macquarie and Aberdeen on their joint takeover of fibre network assets from MasMóvil, which the European Commission cleared in a simplified procedure in March 2020. Vérgez represents construction company SIECSA in appealing against a €3.8 million cartel fine imposed by the CNMC. In November 2019, a district court reduced the fine to €1.55 million, which SIECSA is now challenging before Spain’s High Court.

Switzerland

Patrick Sommer heads the competition group at CMS SWITZERLAND, along with Pascal Favre – who is competition head of the firm’s Geneva office – and Marquard Christen. The latter represented construction company Hew AG Bauunternehmung Chur in the enforcer's bid-rigging investigation into a cartel concerning road construction, which culminated in September 2019 with a fine of up to €928,000. The team is acting for a financial services provider in the authority’s investigation into an alleged boycott of Apple Pay and other international mobile payment solutions. The enforcer carried out dawn raids in November 2018 as part of the probe, which was still pending at the time of writing.

The firm is defending a car manufacturer in a dispute with a Swiss company that wanted to be admitted to the manufacturer’s network of authorised auto mechanics. In July 2019, the Cantonal High Court dismissed the case, and the claimant appealed against the ruling to the Swiss Federal Supreme Court, which upheld the lower court’s ruling in April 2020.Sommer is representing the Swiss branch of pharmaceuticals manufacturer Bayer in challenging the authority’s decision in 2009 to fine it and two rivals €5.2 million for entering into vertical price-fixing agreements with customers. Two courts have overturned the decision, and a further appeal from the authority is pending before the Swiss Federal Supreme Court. Sommer also advised Bank Julius Bär in investigations into its alleged manipulation of foreign exchange rates and participation in a price-fixing cartel for precious metals. The authority closed both investigations into Bank Julius Bär in June 2019.

United Kingdom

CMS has recently expanded its London antitrust practice, which is co-headed by Brian Sher and Caroline Hobson. The firm pulled off a coup with its hire of experienced antitrust litigator Kenny Henderson from Stewarts Law and also recruited of counsel Siobhan Kahmann from Covington & Burling. The team has expertise in a range of sectors, including life sciences, healthcare, energy and financial services. Sher leads the team representing GlaxoSmithKline in its appeal against the CMA’s pay-for-delay Paroxetine decision. The CAT made a preliminary reference to the European Court of Justice, which issued its ruling in January 2020, setting out the standard for the settlement of patent litigation across Europe. In another pharmaceutical case, the firm advises Alliance Pharmaceuticals in the CMA’s probe into four companies that allegedly agreed not to compete for the supply of an anti-nausea tablet to the National Health Service. The CMA paused its investigation in April to focus on the covid-19 pandemic. In merger control work, the team represented Eli Group on its £3 billion acquisition by Stonegate Pub Company, which created the largest pub group in the United Kingdom. The CMA conditionally cleared the deal in February 2020 in Phase I.

Ukraine

Partners OlexanderMartinenko, Maria Orlyk and Olga Belyakova head the competition practice at CMS in Ukraine, assisted by three associates and another lawyer who spend at least half of their time on antitrust work. Most of the firm’s public and confidential portfolio of work focuses on mergers. The firm secured clearance from Ukraine’s Antimonopoly Committee for TIS Group – which is Ukraine’s largest marine port operator – on its joint venture with DP World. SD Capital has tapped the team to seek clearance from the competition authority regarding the creation of an infrastructure joint project. The firm also acts for ALPLA-Werke Alwin Lehner, a global developer and producer of plastic packaging, in launching a joint venture with BillerudKorsnäs to develop a fully bio-based and recyclable paper bottle.

Renewable energy company AccionaEnergia instructed CMS on its acquisition of a participatory interest in three Ukrainian companies that hold the rights to develop three greenfield solar power projects in the Odessa region, as well the acquisition of an existing solar power plant project in Kiev. The firm is advising Erste Group: Steiermärkische Bank und Sparkassen on the acquisition of Société Générale’s shares in Ohridska Banka, and it also acted for financial services provider OTP Bank on the acquisition of several banks and insurance companies in Montenegro, Albania, Bulgaria, Serbia and Moldova, successfully obtaining all necessary merger approvals from Ukraine’s competition authority. MV Cargo continues to receive competition advice from CMS regarding its joint venture with Cargill, as well as the construction of a new grain terminal at the Black Sea port of Yuzhny.

Website: www.cms.law

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