Competition: Brussels court requests preliminary ruling from Court of Justice of the European Union regarding UEFA rules

On 17 August 2015, the Official Journal published details concerning a request by the Court of First Instance of Brussels ("Brussels Court") for a preliminary ruling from the Court of Justice of the European Union ("CJEU"). The Brussels Court seeks a ruling on the compatibility of certain Union Européenne des Sociétés de Football Association ("UEFA") rules with EU law and, in particular, with EU rules on competition and free movement. In October 2014, the Commission rejected a complaint by SPRL MAD Management alleging that a so-called "break-even" rule or "break-even" requirement in the UEFA Club Licensing and Financial Fair Play Regulations breaches Articles 101 and 102 of the Treaty on the Functioning of the European Union ("TFEU"). The "break-even" rule requires that, over a period of three years, the relevant income of football clubs must at least match their relevant expenses, subject to certain permitted deviations. The Commission rejected the complaint for reasons of priority setting and took no position on the merits of the complaint. According to the Commission, the Brussels Court was well-placed to deal with the matter, because the complainant had already sought damages against the UEFA before that court on identical grounds.

The Brussels Court referred a number of questions to the CJEU, seeking to ascertain whether the "break-even" rule infringes Articles 101 or 102 of the TFEU by creating competition restrictions or by abuse of a dominant position. The Brussels court also asks whether the rule violates Articles 63, 56 and 45 TFEU, in addition to Articles 15 and 16 of the Charter of Fundamental Rights of the European Union, by hindering freedom of movement. The Brussels Court inquires in particular whether the requirement restricts competition "by its object" because it limits the right to invest, which is either "by its object" anticompetitive or is not necessary for or proportionate to the achievement of the UEFA's objectives, namely the long-term financial stability of football clubs and the sporting integrity of UEFA competitions. Equally, the Brussels Court asks the CJEU to determine whether the "break-even" rule hinders freedom of movement which restriction is not necessary for or proportionate to the attainment of the above mentioned objectives of UEFA and which is not justified by overriding grounds of public interest. Finally, the Brussels Court inquires whether the "break-even" rule infringes EU law by giving disproportionate and discriminatory preference to the payment of certain creditors and thereby treats the payment of non-protected creditors, in particular football agents, less favorably. Case 299-15 Daniele Striani and Others, RFC Sérésien ASBL v Union Européenne des Sociétés de Football Association (UEFA), Union Royale Belge des Sociétés de Football — Association (URBSFA), Official Journal 2015 C270/19, 17/8/2015 and Case AT.40105 UEFA Financial Fair Play Rules

Competition: Deutsche Telekom appeals against the Commission decision refusing to grant access to documents

On 17 August 2015, the Official Journal published details of an appeal by Deutsche Telekom AG ("Deutsche Telekom") before the General Court ("GC") against the Commission's decision refusing to grant access to certain documents. In February 2015, the Commission rejected Deutsche Telekom's application for access to documents concerning proceedings under Article 102 of the Treaty on the Functioning of the European Union ("TFEU"). Deutsche Telekom brought an action before the GC seeking to annul the Commission's decision.

According to Deutsche Telekom, the Commission erred in its application of the exceptions to the general requirement for disclosure included in Regulation 1049/2001 on public access to EU institutions' documents. Deutsche Telekom also claims that the Commission breached the fundamental right of access to documents under Article 42 of the Charter of Fundamental Rights of the European Union and the obligation of transparency under Article 15(3) of the TFEU. Source: Case T-210/15 Deutsche Telekom v Commission, Official Journal 2015 C 270/28, 17/8/2015

Merger control: Airdata AG and 1&1 Telecom GmbH appeal against the Commission Telefónica Deutschland/E-Plus merger decision

On 17 August 2015, the Official Journal published details of appeals brought by Airdata AG ("Airdata") and 1&1 Telecom GmbH ("1&1 Telecom") against the Commission's decision that conditionally approved the acquisition of E-Plus by Telefónica Deutschland ("Telefónica"). In July 2014, the Commission announced that, following a Phase II investigation, it had approved the acquisition of E-Plus by Telefónica, subject to conditions. Initially, the Commission had concerns that the acquisition would have removed two close competitors and important competitive forces from the German mobile telecommunications market and that it would have further weakened the position of Mobile Virtual Network Operators ("MVNOs") and Service Providers, to the detriment of consumers. To address the Commission's concerns, Telefónica agreed to divest up to 30% of the merged entity's network capacity to as many as three MVNOs in Germany. Telefónica also agreed to divest radio wave spectrum and certain assets either to a new mobile network entrant or subsequently to the MVNOs who will have taken up the network capacity as well as to extend its existing wholesale agreements and offer wholesale 4G services.

Subsequently, Airdata and 1&1 Telecom brought actions before the General Court ("GC") seeking to annul the Commission decision. To support their action, Airdata and 1&1 Telecom claim that the Commission failed to state adequate reasons for its conditional clearance decision and committed errors of law in its assessment of the acquisition under EU merger control rules and in analyzing and accepting the commitments offered by Telefónica. Source: Cases T-305/15 – Airdata v Commission and T-307/15 – 1&1 Telecom v Commission, Official Journal C 270/34-35, 17/8/2015 and Commission Press Release 2/7/2014

Competition and Public Procurement (Sweden): Swedish government issues new instructions for Swedish Competition Authority and new Public Procurement Authority

On 23 July 2015, the Swedish government issued new instructions for the Swedish Competition Authority ("SCA") and the new Swedish Public Procurement Authority. The instructions contain information regarding the responsibilities and management for both authorities starting on 1 September 2015. According to the amended instructions, the SCA will continue to be the administrative authority for competition matters and the regulatory authority for public procurement. The new Swedish Public Procurement Authority will have the overall responsibility for developing, managing and supporting procurement by contracting authorities and entities. According to the instructions, there will be specific interaction between the two authorities. Source: Swedish Competition Authority Press Release (in Swedish), 6/8/2015

Merger control (Sweden): Swedish Competition Authority approves acquisition of STC Greenfood by Fidelio Capitals

On 4 August 2015, the Swedish Competition Authority (“SCA”) approved the acquisition of STC Greenfood AB by Fidelio Capitals AB without commitments. Both companies are active on the wholesale food market and suppliers of salad bar concepts, including a range of food products, to grocery stores, hotels, restaurants and catering companies. Therefore, some horizontal and vertical overlaps were found between the companies. However, the SCA's investigation showed that the acquisition will not significantly impede the existence or development of competition on the Swedish wholesale food market. This is due to the existence of several established competitors and few barriers to market entry. Source: Swedish Competition Authority Press Release (in Swedish), 5/8/2015

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 Thorntons by Ferrero
  • Commission approves acquisition of online retailer RFS Holland by Apax Partners
  • Commission approves acquisition of joint control over Volkswagen Credit Compañía Financiera S.A by Volkswagen Financial Services AG and Banco Bilbao Vizcaya Argentaria