EU Competition

EU expands restrictive measures against North Korea. On 31 March 2016, the European Council (EC) issued a press release confirming that it had expanded restrictive measures against the Democratic People's Republic of Korea (North Korea) in accordance with United Nations Security Council resolution 2270 adopted on 2 March 2016. Measures now include the import/export of any items (other than food or medicine) which could contribute to the operational capabilities of North Korea’s armed forces; the export of certain mineral products (such as coal and iron) from North Korea; and the export of Aviation fuel to North Korea. A number of financial measures have also been introduced, including the closure of existing joint ventures, ownership interests and correspondent banking relationships with North Korean banks.    

1&1 Telecom appeals Commission’s decision regarding remedies granted for phase 2 conditional approval of Telefónica’s acquisition of E-Plus. On 21 March 2016, details were published in the Official Journal of an appeal brought by 1&1 Telecom GmbH (1&1) in the General Court, against a decision of the European Commission (Commission) declaring a self-commitment letter provided by Telefónica Deutschland to secure the Commission’s conditional approval of its acquisition of E-Plus, to be in line with the final commitments and EU law. 1&1, which is already appealing the Commission’s decision to approve the merger, is challenging the Commission’s decision in respect of the self-commitment letter on the basis that the Commission's decision goes beyond what was provided for in its July 2014 decision to conditionally approval the acquisition and that the Commission misused its powers. 1&1 has therefore, requested that the General Court order the Commission to request that Telefónica issue a new self-commitment letter that is strictly limited to the obligation required from it, as set out in paragraph 78 of the final commitments approved by the merger decision.

EU Mergers

Phase I Mergers

  • M.7937 COMPUTER SCIENCES CORPORATION / XCHANGING (31 March 2016)
  • M.7952 BRIDGEPOINT GROUP / SMYK GROUP (1 April 2016)

State Aid

General Court issues order in Hispasat's State aid appeal. The General Court has issued an order dated 14 January 2016 in respect of an appeal brought by Hispasat SA (Hispasat) against the Commission’s decision to recover Spanish aid granted to it in breach of Article 108, paragraph 3, Treaty on the Functioning of the European Union (TFEU), by the authorities of Castile -La Mancha for the deployment of digital terrestrial television in remote areas and less urbanized areas of Castilla-La Mancha. The decision of the Commission was that the Spanish scheme was incompatible with EU State aid rules because among other reasons, it only benefited terrestrial digital technology, and was therefore, technology biased. The Commission has since corrected its decision, leaving Hispasat’s appeal without object and as a result, the order of the General Court confirmed that it is no longer required to adjudicate the appeal.

EU Trade

Croatia accedes to EU-South Africa trade agreement. On 30 March 2016, the EC published its decision in the Official Journal giving effect to the Additional Protocol to the Agreement on Trade, Development and Cooperation (Additional Protocol) between the European Community and South Africa, in order to take account of the Republic of Croatia’s accession to the EU. The Additional Protocol came into effect on 1 March 2016.

UK Competition

CAT rules against Sainsbury’s application for disclosure of Mastercard documents. On 24 March 2016, the Competition Appeal Tribunal (CAT) published its ruling in respect of Sainsbury’s Supermarket Limited’s (Sainsbury’s) applications for specific disclosure in its action against Mastercard. Sainsbury’s had requested specific disclosure of Mastercard’s submissions to the Commission which formed the basis of the Commission’s view that 90% of Maestro card’s market share had been lost between 2001 and 2011, in addition to documents relating to market counterfactual. The CAT ruled against Sainsbury’s application for specific disclosure due to questions of materiality and relevance. It also noted that the application should have been made months ago, at the time during which the Maestro card issue was being examined.    

CAT issues order in damages claim brought by Peugeot Citroën against Pilkington. On 1 April 2016, the CAT issued an order requiring the hearing of an issue raised in the damages action brought by Peugeot Citroën, SAAB Automobile and others against Pilkington Group Limited and Pilkington Automotive Limited to be heard jointly with a hearing in respect of the same issue, raised in the damages action brought by companies within the Deutsche Bahn, ASOS, Hertz and other groups against Mastercard. The matter in question is whether, on the assumption that foreign laws apply to claims pursuant to section 47A of the Competition Act 1998, whether the limitation period under the Foreign Limitation Periods Act 1984, will apply.    

CMA investigating anticompetitive behavior in UK cleaning services sector. On 30 March 2016, the Competition and Markets Authority (CMA) announced that it had opened an investigation into suspected anti-competitive arrangements in the UK cleaning services sector infringing Chapter I of Competition Act 1998. The initial investigation is scheduled to continue through March to September 2016.    

CMA investigating anticompetitive behavior in furniture industry. On 31 March 2016, the CMA announced that it had opened an investigation into suspected anti-competitive arrangements in the supply of products to the furniture industry concerning suspected infringements of Chapter I of the Competition Act 1998 and Article 101 of the TFEU. The initial investigation is scheduled to continue through March to July 2016.    

CMA amends timetable for report following BAA airports market investigation. On 31 March 2016, the CMA amended its timetable for reviewing the impact of the remedies arising from the Competition Commission’s 2009 BAA airports market investigation. The final report is now expected to be published in May 2016.

Speeches & Publications

CMA publishes summary of roundtable and new evidence from a business survey on vertical restraints. On 30 March 2016, the CMA published a “Summary note of the CMA roundtable on vertical restraints 16 January 2015” together with a report titled, “Vertical restraints: new evidence from a business survey” which it had commissioned. The CMA has explained that the report, which undertakes a qualitative survey exploring businesses’ incentives to use vertical restraints and the impact of the internet on these incentives, follows the roundtable discussion on the same research questions.    

Ofcom adopts CMA guidance on voluntary redress schemes, while FCA decides to publish its own guidance. The Office of Communications (Ofcom), the independent regulator and competition authority for the UK communications industries, has announced that it has decided to adopt the CMA’s guidance in relation to redress schemes in competition cases affecting those sectors where Ofcom has concurrent competition powers, namely in communications sectors including broadcasting, telecommunications and postal services. Under new regulations which came into effect on 1 October 2015, Ofcom now has the power to approve certain voluntary redress schemes in cases involving the infringement of competition law. In contrast, on 30 March 2016, the Financial Conduct Authority (FCA) published its own guidance, rather than adopting the guidance of the CMA. The FCA’s guidance explains the legal framework and requirements for the approval of such redress schemes; and sets out, among other things, its considerations and processes for approving such schemes.    

CEER publishes benchmarking report on removing barriers to entry for energy suppliers in EU retail energy markets. On 1 April 2016, the Council of European Energy Regulators (CEER) published its benchmarking report to identify barriers to entry for energy suppliers into retail gas and electricity markets across the European Union (EU). The report also sets out the actions that have already been taken by National Regulatory Authorities in order to address this issue. The report aims to build on the CEER’s previous work in assisting new suppliers in entering the market in order to achieve its aim of a “well-functioning retail energy market”.    

CEER publishes a status review on the Implementation of Transmission System Operators’ Unbundling Provisions. On 1 April 2016, the CEER published a review of the status of its implementation of the unbundling provisions set out in the Directives of the 3rd Energy Package (Package). The Package sets out the requirements for energy companies to “unbundle” the various stages of energy supply. Under the Package, Member States are obliged to ensure that vertically integrated energy companies separate their generation, distribution, transmission and supply functions. The report notes that 70% of electricity Transmission Systems Operators (TSO) have been certified under the ownership unbundling model, but only 40% of gas TSOs have been certified under the same model, with another 44% opting for certification under the independent transmission operator model.