Competition: Advocate General Wahl recommends that four General Court judgements concerning the legality of Commission requests for information be set aside

On 15 October 2015, Advocate General ("AG") Wahl gave his opinion on four appeals lodged before the Court of Justice of the European Union ("CJEU") by cement companies (HeidelbergCement, Buzzi Unicem, Schwenk Zement and Italmobiliare) against judgements of the General Court ("GC") dismissing the companies appeals of a decision of the Commission. The Commission had addressed requests for information ("RFI") to the companies as part of an investigation concerning a suspected infringement of Article 101 of the Treaty on the Functioning of the European Union ("TFEU").

In 2010, the Commission began investigating several cement manufacturers for suspected infringements of Article 101 TFEU. On 30 March 2011, the Commission adopted the contested decision and requested information from various cement companies. The RFI was very lengthy and requested detailed data covering an extensive period of time. The companies were requested to provide the information within 12 weeks. Several cement companies challenged the Commission's decision containing the RFI before the GC. In 2014, the GC handed down seven separate judgments, dismissing six appeals in their entirety and upholding Schwenk Zement's appeal on the point that the Commission had imposed a disproportionate two-week deadline for the provision of certain information. Five of the cement companies appealed the GC's judgments before the CJEU (one appeal was later withdrawn). 

AG Wahl handed down separate opinions on the four appeals, which raise similar, though not identical, issues. In the opinions, AG Wahl identified various errors in the GC's review of the Commission's information request decision. AG Wahl concluded in particular that the GC did not correctly examine whether the statement of reasons in the Commission's decision was adequate. According to AG Wahl, the purpose of the Commission's RFI was insufficiently clear. Further, the GC had erred in examining the necessity and proportionality of the RFIs, and in considering the companies' rights to avoid self-incrimination. The AG also accepted Italmobiliare's argument that the Commission breached the principles of proportionality and legal certainty in sending the RFI to Italmobiliare, a financial holding company, rather than to the cement companies within its corporate group. In addition, AG Wahl concluded that the GC had erred in holding that the Commission had been entitled to require that the information be provided according to a specific format. He considered that the Commission's information request required the undertakings to perform operations of formatting (and re-formatting) which, in principle, should have been carried out by the Commission.

Having found that each of the GC's judgments was unlawful in various respects, AG Wahl concluded that these judgements should be set aside. AG Wahl also proposed that the CJEU should annul the Commission's contested decision. Source: Case C-247/14 P – HeidelbergCement AG v European Commission, Opinion of Advocate General Wahl, 15 October 2015Case C-248/14 P – Schwenk Zement KG v European Commission, Opinion of Advocate General Wahl, 15 October 2015Case C-267/14 P – Buzzi Unicem SpA v European Commission, Opinion of Advocate General Wahl, 15 October 2015 and Case C-268/14 P – Italmobiliare SpA v European Commission, Opinion of Advocate General Wahl, 15 October 2015

Competition: Commission fines suppliers of optical disc drives EUR 116 million for cartel

On 21 October 2015, the Commission fined eight optical disc drive suppliers (Philips, Lite-On, their joint venture Philips & Lite-On Digital Solutions, Hitachi-LG Data Storage, Toshiba Samsung Storage Technology, Sony, Sony Optiarc and Quanta Storage) a total of EUR 116 million for having coordinated their behavior in relation to procurement tenders organized by two computer manufacturers, Dell and Hewlett Packard ("HP"), in breach of Article 101 of the Treaty on the Functioning of the European Union ("TFEU"). Philips, Lite-On and their joint venture Philips & Lite-On Digital Solutions received full immunity from fines as they were the first to reveal the existence of the cartel. Optical disc drives ("ODDs") read or record data stored on optical disks, such as CDs, DVDs or Blu-ray. They are used for instance in personal computers, CD and DVD players and video game consoles.

The Commission's investigation revealed that between June 2004 and November 2008, the companies participating in the cartel communicated to each other their intentions regarding bidding strategies, shared the results of procurement tenders and exchanged other commercially sensitive information concerning ODDs used in laptops and desktops. They organized a network of parallel bilateral contacts that pursued a single plan to avoid aggressive competition in procurement tenders organized by Dell and HP. Although the cartel contacts took place outside of the European Economic Area ("EEA"), they were implemented on a worldwide basis. The duration of each company's involvement in the cartel varied and ranged from less than a year to over four years.

According to the Commission, the companies were aware that their behavior was illegal and tried to conceal their contacts and to evade detection of their arrangements. The companies used abbreviations or generic names of each other and avoided leaving traces of anticompetitive arrangements by preferring face-to-face meetings and ensured that the competitors' discussions were not revealed to customers. Some of the meetings took place in parking lots or cinemas.

Source: Commission Press Release 21/10/2015

Merger control: Commission signs best practices cooperation framework with China

On 15 October 2015, the Commission announced that the Directorate General for Competition of the European Commission ("DG Competition") and the Ministry of Commerce ("MOFCOM") of the People's Republic of China signed a best practices framework for cooperation on the review of mergers. The best practices constitute a framework for strengthening cooperation and coordination between the Commission and MOFCOM throughout the entire merger review process, on issues of both procedure and substance, including the definition of relevant markets, theories of harm, competitive impact assessments and remedies.

According to the Commission, this cooperation between competition authorities increases the efficiency of investigations and reduces the burden on the merging parties, in particular when authorities are able to share information and to discuss timetables at key stages of investigations with each other and with the merging companies. The Commission also states that the signing of the guidance document reflects the ambition of enhanced cooperation on competition matters between the EU and China.

Source: Commission press release 15/10/2015

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 a real estate asset in Milan by Grosvenor and PSPIB
  • Commission approves acquisition of Imtech Marine by Parcom and Pon in maritime electrical engineering
  • Commission approves acquisition of car trader MSA by rival PGA
  • Commission approves acquisition of SunGard by Fidelity National Information Services
  • Commission approves acquisition of joint control of Zaldivar by Antofagasta and Barrick
  • Commission approves acquisition of Sikorsky Aircraft by Lockheed Martin
  • Commission approves acquisition of Davigel Group by Bain Capital
  • Commission approves acquisition of Securitas Direct by Hellman & Friedman