Competition: Commission publishes competition policy brief on damages directive

On 13 January 2015, the Commission published a competition policy brief (“Brief”) on the Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union (“Directive”). The Brief explains the background of the Directive and describes how EU competition law has been privately enforced before the adoption of the Directive. The Brief also introduces the main improvements by the Directive regarding, inter alia, broader possibilities for gaining access to evidence as well as limits to disclosure of evidence, the principle of full compensation, the forms of non-judicial dispute resolution, the interaction between private enforcement of EU competition rules and public enforcement carried out by the Commission and national competition authorities as well as rules concerning joint and several liability of leniency applicants. Source: Competition Policy Brief, Issue 2015-1, January 2015

Competition: CEAHR appeals Commission’s rejection of complaint regarding refusal to supply luxury watch spare parts

On 12 January 2015, details were published of an appeal brought by Confédération européenne des associations d’horlogers-réparateurs (“CEAHR”) against the Commission’s decision to reject a complaint concerning refusals by several manufacturers of prestige and luxury watches to supply spare parts to independent repairers. In July 2008, the Commission rejected CEAHR’s complaint regarding such refusal due to lack of community interest. CEAHR brought an appeal before General Court (“GC”) which annulled the Commission’s decision in December 2010. According to the GC, the Commission had failed to give sufficient reasons for its conclusion that the market involved was of limited size or economic importance. In order to take the GC’s judgement into account, the Commission opened formal proceedings in August 2011 in order to further investigate CEAHR’s claims. However, following comprehensive investigations, the Commission decided to close the proceedings in July 2014 by concluding that there was limited likelihood of finding an infringement in the case at hand. CEAHR has now brought its second appeal before the GC seeking that the Commission’s decision be declared void. To support its action, CEAHR submits that the Commission based its findings on manifest errors of appraisals in law and fact and failed to provide appropriate reasoning for its findings. Furthermore, CEAHR claims that the Commission’s decision is the result of a procedure during which the Commission failed to attentively examine the elements of law and fact raised by CEAHR and thereby violated CEAHR’s right to good administration. Source: Case T-712/14 CEAHR v Commission, OJ C7/36, 12 January 2015Case T-427/08 Confédération européenne des associations d’horlogers-réparateurs (CEAHR) v European Commission, judgement of the General Court 15 December 2010and Case AT.39097 – Watch Repair, Commission’s decision rejecting a complaint pursuant to Article 7(2) of Regulation 773/2004

Competition (Finland): Finnish Competition and Consumer Authority’s survey shows that store location has a greater impact on the choice of store than customer loyalty programmes

On 8 January 2015, the Finnish Competition and Consumer Authority (“FCCA”) published a report on consumers’ shopping behavior in the grocery retail trade. The specific focus of the survey was on the impact of customer loyalty programmes on shopping behavior. Based on the results, store location was clearly the deciding factor in the selection of both the primary and complementary store. After location, the choice of store was most affected by, inter alia, a product selection matching the consumer's needs, the familiarity of the store and the reliable availability of goods. In addition, opening hours had a significant impact on the choice of complementary shopping places, in particular. Factors related to loyalty programmes, on the other hand, were of smaller significance than location and opening hours. Even so, more than half of the survey respondents estimated that factors related to customer loyalty have significant or very significant effect on their choice of shopping place. According to the report, the more consumers were financially rewarded afterwards for concentrating their purchases in one trade group, the more likely they were to do so. The study was conducted using a consumer survey responded to by 1,009 Finnish consumers between the ages of 18 and 74. The survey is part of a broader inquiry by the FCCA, launched at the turn of 2013–2014, to assess whether the customer loyalty programmes and customer owner programmes of companies in a dominant position in the grocery trade have a potentially restrictive impact on competition in the grocery trade market. The work will continue during 2015, and the results of the published report will form a part of the assessment of the competitive impact of customer loyalty programmes. Source: Finnish Competition and Consumer Authority Press Release 8/1/2015 and The FCCA's Report 1/2015 (in Finnish)

Merger control (Finland): Finnish Competition and Consumer Authority opens in-depth investigation into acquisition of Anvia by Elisa  

On 12 January 2015, the Finnish Competition and Consumer Authority (“FCCA”) announced that it has opened an in-depth investigation (“Phase II”) into a proposed acquisition of Anvia Oyj (“Anvia”) by Elisa Oyj (“Elisa”). Both parties are providers of services in fixed and mobile telephone networks. According to the FCCA, the merged entity will have a very significant position on these markets particularly in Anvia’s traditional operational territory in Ostrobothnia. During the in-depth investigation, the FCCA will examine whether the transaction will significantly impede effective competition on the Finnish markets or a substantial part thereof, in particular as a result of the creation or strengthening of a dominant position. The FCCA may accept the transaction with or without conditions or propose to the Market Court that it would prohibit the transaction. The FCCA shall make its decision in the matter within three (3) months from opening the in-depth investigation. Source: The FCCA’s Press Release 12/1/2015 (in Finnish)

State aid: General Court dismisses an appeal against the Commission’s decision approving Greek grant of exclusive rights and license to public gambling operator

On 8 January 2015, the General Court (“GC”) dismissed an appeal by a number of Greek casino operators against the Commission’s decision that found that there was no state aid involved in the grant of extended exclusive rights to operate 13 games of chance and the grant of an exclusive agreement to operate Video Lottery Terminals (“VLTs”) to the Greek public gambling operator, Organismos prognostikon agonon podosfairou (“OPAP”). In 2011, the Greek authorities notified the Commission about two measures in favor of OPAP. The first measure concerned a grant, for a period of 10 years ending in 2022, of an exclusive license to operate 35 000 VLTs in exchange for a fee of EUR 560 million  (“the VLT Agreement”). The second measure concerned a 10-year prolongation of the exclusive rights for the operation of 13 games of chance by any means, pursuant to an addendum to an agreement concluded in 2000 by the Greek State and OPAP (“Addendum”), in return for a lump sum payment of EUR 375 million and a levy of 5 percent of the gross gaming revenues generated. In April 2012, several casino operators in Greece filed a complaint with the Commission, on the ground that the VLT Agreement entailed the grant to OPAP of state aid incompatible with the internal market. In October 2012, the Commission adopted a decision finding that the VLT Agreement and the Addendum did not involve state aid, within the meaning of Article 107(1) of the Treaty on the Functioning of the European Union (“TFEU”). In January 2013, a number of Greek casino operators brought an action before the GC against the Commission’s decision. As regards the casino operators’ claim that the Commission misused its power by failing to initiate the formal investigation procedure, the GC recalled, first of all, that the Commission has the power to adopt, following the preliminary investigation stage, a decision by which it finds that there is no state aid but takes note of the commitments of the Member State. It may also engage in dialogue with the State and align its position with the results achieved without that alignment establishing the existence of serious difficulties. The GC found that, in its assessment of the notified measures, the Commission did not face serious difficulties and was not therefore required to initiate the formal investigation procedure. Further, as regards the casino operators’ allegations that the Commission failed to fulfill its obligation to state reasons and infringed the right to good administration and that it infringed the right to effective judicial protection, the GC concluded that the omission of economic data in the non-confidential version of the contested decision did not prevent the casino operators from understanding the reasoning followed by the Commission, nor from challenging the decision in court, nor prevent the GC from exercising its judicial review in the present action. The applicants’ rights to effective judicial protection and the Commission’s obligation to state reasons had therefore been respected. Finally, in relation to the casino operators’ claim that the Commission did not correctly assess the question of the existence of an advantage for OPAP, the GC considered that the casino operators have not demonstrated that the Commission committed an error of law by jointly assessing the VLT Agreement and the Addendum, those two agreements having been concluded at the same time with OPAP in view of its privatization. Accordingly, the GC dismissed the action in its entirety and confirmed the Commission’s decision. Source: General Court Press Release 8/1/2015

In addition, kindly note the following merger control decisions by the Commission which are published on the website of the Commission’s Directorate-General for Competition:

  • Commission approves acquisition of MHI Compressor International by Mitsubishi Heavy Industries and Mitsubishi Corporation