EU Competition

Portuguese Competition Authority fines ANF Group for abuse of dominant position. On 31 December 2015, the Portuguese Competition Authority (PCA) imposed fines of approximately €10.34 million on Associação Nacional das Farmácias (ANF), and three companies of ANF Group for abusing their dominant position (between January 2010 and December 2013) in the form of a margin squeeze in the Portuguese pharmacies’ commercial data market (upstream market), and in the markets of pharma market studies based on the data (downstream market), in breach of the Chapter II prohibition of Article 102 of the Treaty of the Functioning of the European Union (TFEU) and Article 11 of the Portuguese Competition Act. More specifically, the PCA’s investigation concluded that the prices charged by ANF Group for pharmacies’ commercial data, and those charged by ANF Group for pharma market studies based on the data, did not provide an equally efficient competitor active in the downstream market with a sufficient margin to cover the remaining production costs.

ECJ rejects appeals by companies whose appeals against European Commission decision amending prestressing steel cartel decision were dismissed as inadmissible.On 6 January 2016, the European Court of Justice (ECJ) dismissed appeals by four companies against Orders of the General Court that dismissed, as inadmissible, appeals against the European Commission’s (Commission) amendment of the prestressing steel cartel decision. The applicants claimed, before the ECJ, that the General Court erred in law in concluding that they had no interest in challenging the amendment decision (which did not alter the fine imposed on the applicants, or their liability to pay the fine). The ECJ concluded that the General Court had correctly found that the applicants would derive no benefit from an annulment of the amendment decision. Therefore, the ECJ dismissed the appeals in their entirety.

Number of judges in General Court to increase to address long duration of proceedings.On 24 December 2015, Regulation 2015/2422, amending Protocol No 3 on the Statute of the Court of Justice of the European Union, was published in the Official Journal of the European Union. This Regulation provides for progressively increasing the number of judges of the General Court to 56 (two judges per member state) from 1 September 2019. It is hoped that an increase in the number of judges will allow for a reduction within a short time of both the volume of pending cases, and the excessive duration of proceedings before the General Court.

EU Mergers

Phase I Mergers

  • M.7760 TRITON / KKR / EM (7 January 2016)
  • M.7827 BERKSHIRE HATHAWAY / PRECISION CASTPARTS (6 January 2016)
  • M.7882 THOMAS H LEE PARTNERS / GOLDMAN SACHS / GCA SERVICE GROUP (6 January 2016)

Public Procurement

Commission further simplifies public procurement across the EU. On 5 January 2016, the Commission adopted the European Single Procurement Document (ESPD), which aims to reduce the administrative burden for bidders. The ESPD will allow businesses to electronically self-declare that they meet the necessary regulatory criteria or commercial capability requirements, and only the winning company will need to submit all the documentation, proving that it qualifies for the contract. It is hoped that the ESPD will particularly benefit small and medium-sized enterprises.

CMA announces e-learning module for public procurers to learn how to spot bid-rigging.On 7 January 2016, the Competition and Markets Authority (CMA) announced that it has worked with the Crown Commercial Service to create an e-learning module which will help more than 4,000 central government procurers identify and prevent attempts to win government contracts through anti-competitive conduct, such as bid-rigging. Bid-rigging involves competing businesses which are invited to bid in competitive tenders secretly colluding so that, contrary to appearances, they are not fully competing for the contract and is a serious infringement of competition law.

State Aid

Commission opens in-depth State aid investigation into UK public support for Drax power plant. On 5 January 2016, the Commission announced that it has opened an in-depth State aid investigation to assess whether the UK’s plans to support the conversion of the Drax coal power plant to operate on biomass are in line with EU State aid rules. The Commission is concerned that the measures to support the project could trigger overcompensation, and that due to the volume of wood pellets required, the project could distort competition on the biomass market. It will, therefore, examine whether the positive effects of the project in achieving EU energy and environmental objectives outweigh such potential competition distortions.

Trade

EU, Ukraine trade area enters into force on 1 January 2016. On 1 January 2016, the Commission announced that the Deep and Comprehensive Free Trade (DCFTA) deal between the EU and Ukraine has come into force. The agreement will lower import duties and offer economic benefits for both trade partners. It is hoped that Ukrainian business will receive stable and predictable preferential access to the EU market, while EU businesses will be able to benefit from easier access to the Ukrainian market, while building new relationships with Ukrainian suppliers and cooperation partners. Currently, the EU and Ukrainian economies are well integrated – the EU accounts for 35% of Ukraine’s external trade and Ukraine’s exports include iron & steel, mining products and agricultural goods, as well as chemicals and machinery. The main EU exports to Ukraine include machinery & appliances, transport equipment, chemicals and other industrial products.