In this issue:

The Insurance BER Consultation

Eithne McCarthy, Jul 22, 2008

Is a Safe Harbour for Insurance Still Justified?

As the Consultation points out, only a few sectors currently benefit from a sector specific block exemption regulation and in other sectors block exemptions have expired and not been renewed. The Commission now needs to consider whether there are sufficient grounds to continue to declare by regulation, Article 81(3) applicable to certain categories of agreements in the insurance sector.

EC Merger Review after SonyBMG

Simon Hirsbrunner, Christian Köckritz, Jul 28, 2008

Rebalancing EC Merger Control: The ECJ’s Judgment in Case C-413/06 P (Bertelsmann and Sony)

On July 10, 2008, the European Court of Justice overturned the European Court of First Instance’s Impala judgment, which had previously quashed the European Commission’s clearance decision of the Sony/BMG merger. This article briefly examines the findings of the ECJ in its Bertelsmann and Sony judgment.

Caroline Pauwels, Ben Van Rompuy, Jul 22, 2008

The European Commission’s Reexamination of the SonyBMG Merger: A Precedent-Setting Attempt to Jump the Fence

This article analyzes the new clearance decision in light of the Impala judgment and, subsequently, assesses whether or not Impala is imposing too high of a standard of proof on the Commission. It argues that the Commission has made a successful attempt to meet the Community Court’s standard, but that it is questionable that the Commission will be able to jump the fence again in a similar fashion under normal procedural circumstances.

Regulating Energy Prices

Amy Garzon, Layne Kruse, Jul 28, 2008

A Short Guide to the Prosecution of “Market Manipulation” in the Energy Industry: CFTC, FERC, and FTC

Market manipulation in the energy industry has always been a focus in the energy industry, and now the U.S. Federal Trade Commission has joined the Commodity Futures Trading Commission and Federal Energy Regulatory Commission with statutory authority to police market manipulation in the energy industry. With three federal agencies, the lines of authority are far from clear. This article provides a brief guide to the statutory framework for the three agencies and explains the similarities and differences in their authority.

David Rodi, Jul 28, 2008

Congress and the Courts Tackle Credit Card Fees at Service Stations

With the recent increase in motor fuel prices in the United States, the credit card processing fees paid by service station owners have come under increased scrutiny from both the U.S. Congress and the courts. In March 2008, Representative John Conyers (D-MI) introduced the Credit Card Fair Fee Act of 2008, which would grant merchants an exemption from the antitrust laws in order to allow them to band together and jointly negotiate with credit card companies over fees. Meanwhile, the federal courts have been wrestling with antitrust challenges to the credit card processing requirements that the major oil companies impose on their dealers and wholesalers.