EU Antitrust

Deutsche Telekom appeals Commission decision to fine it and its subsidiary Slovak Telekom for abusive conduct. On 23 March 2015, details were published in the Official Journal of an appeal lodged by Deutsche Telekom AG against the European Commission’s decision to fine it and its subsidiary Slovak Telekom a.s. for abusive conduct in the Slovak broadband market in breach of Article 102 of the Treaty on the Functioning of the European Union (TFEU). Deutsche Telekom claims, in particular, that the Commission infringed its rights of defence in the determination of abusive conduct, failing to prove a refusal to supply and using a defective methodology for margin squeeze. Deutsche Telekom also argues that the Commission erred in its assessment of the duration of the infringement and in attributing liability to Deutsche Telekom. Further, the Commission erred in its calculation of the fine and in imposing a separate fine on Deutsche Telekom

General Court upholds Commission decision finding that re-monopolisation of Slovakian postal services breached Articles 106/102. On 25 March 2015, the General Court dismissed an appeal by Slovenská Pošta against the European Commission’s 2008 decision finding that amendments to Slovakia’s postal law breached Article 106 of the TFEU, in conjunction with Article 102. The General Court held that the Commission had not erred in finding that these amendments extended the exclusive rights reserved to Slovenská Pošta to another market, for the delivery of hybrid mail. In addition, the Commission did not err in finding that the extension had led, to the detriment of end-users, to a limitation of downstream services linked to the delivery of hybrid mail

Advocate General’s Opinions on appeals against General Court’s rulings relating to paraffin wax cartel. On 26 March 2015, Advocate General Nils Wahl handed down his Opinions on appeals by Total SA and its subsidiary Total Marketing Services (successor to Total Raffinage Marketing) against the General Court judgments on their actions to challenge the European Commission’s decision on the paraffin wax cartel. The Advocate General found that the General Court had not erred in law when it refused to reduce Total SA’s fine in the same proportions as the fine imposed on Total Marketing Services

EU Mergers

Phase I Mergers

  • M.7545 – Blackstone / Koala / Acenden / AMS (25/03/2015)
  • M.7553 – PAI / Lion Adventure (27/03/2015)
  • M.7557 – Apax Partners / Azelis (25/03/2015)
  • M.7590 – Berkshire Hathaway / Detlev Louis Motorrad / Motorrad Vertriebsgesellschaft (27/03/2015)

State Aid

Advocate General’s Opinion on calculation of interest when recovering unlawful state aid. On 26 March 2015, Advocate General Melchior Wathelet handed down his Opinion in a preliminary reference from the Italian Supreme Court on the calculation of interest when recovering unlawful state aid. The Advocate General confirmed that, for a Commission decision ordering recovery of aid prior to the entry into force of Regulation 794/2004 implementing Regulation 659/1999 on the application of Article 108 of the TFEU, and where the decision itself is silent on the point, the question whether the interest rate to be charged on the unlawful aid to be recovered is simple or compound is governed by national procedures

Advocate General’s Opinion on recovery of French aid to SNCM for Marseille-Corsica sea link. On 26 March 2015, Advocate General Melchior Wathelet handed down his opinion in an action by the European Commission seeking a declaration that France has failed to fulfil its obligations under the Commission’s decision requiring it to recover state aid granted unlawfully to the Société Nationale Corse-Méditerranée (SNCM) for an additional shipping service to cover peak periods during the holiday season. The Advocate General recommends that the European Court of Justice (ECJ) reject France’s defence that compliance with the Commission’s decision was impossible. He does not accept France’s arguments that the implementation of the decision would inevitably lead to the liquidation of SNCM and serious disturbances of public order. In his Opinion, France has failed in its obligation to take, within the prescribed period, all the necessary measures to recover the state aid declared unlawful by the Commission.

UK Competition

Ofwat accepts Bristol Water’s commitments to address competition concerns in provision of services to self-lay organisations. On 23 March 2015, Ofwat published its decision to accept binding commitments, under section 31A of the Competition Act 1998, from Bristol Water. These commitments are intended to address concerns relating to Bristol Water’s behaviour in offering non-contestable services to self-lay organisations (SLOs) providing contestable new connections services. Ofwat had concerns that Bristol Water’s behaviour (including pricing and non-pricing behaviour) could potentially restrict entry and expansion of SLO competitors in the new water connections market in Bristol Water’s area. Under the commitments, Bristol Water has agreed to make changes to both its structure and processes, including a clearer separation of Bristol Water’s contestable downstream developer services functions from its non-contestable upstream services

Trade

Philips bulb-duty appeal should be rejected, the Court of Justice Opinion says. On 26 March 2015, Advocat General Bot opined that a legal challenge brought by Phillips Lighting over antidumping tariffs on imports of certain Asian light bulbs should be rejected. Bot said that the EU’s trade-defence Regulation only lays down criteria that industry must meet for the Commission to open an investigation. It does not oblige the Commission to halt its investigation should the level of support fall once the probe has started.

Speeches & Publications

Commissioner Vestager speech announcing proposal for e-commerce sector inquiry. On 26 March 2015, Commissioner Vestager announced at a conference in Berlin that she will propose to the College of Commissioners, in May 2015, to launch a competition sector inquiry into the e-commerce sector.

CMA announces new investigation into conduct in the clothing, footwear and fashion sector. On 25 March 2015, the CMA announced that it has opened an investigation into suspected anti-competitive arrangements in the UK clothing, footwear and fashion sector which may infringe Chapter I of the Competition Act 1998 and/or Article 101 of the TFEU. The CMA indicates that it hopes to reach a decision on whether to proceed with or close the investigation by October 2015.

CMA publishes independent evaluation of OFT’s market study on the commercial use of public information. On 26 March 2015, the CMA published a report prepared by DotEcon providing an independent evaluation of the Office of Fair Trading’s (OFT) 2006 market study into the commercial use of public information. The report assesses how the provision of public sector information has changed since the study was published.

FCA confirms findings that competition is not working well in retirement income market. On 26 March 2015, the Financial Conduct Authority published its final report on its retirement income market study having considered responses to its consultation on its interim report (published in December 2014) and taken into account developments in the market. It has, therefore, confirmed that there are aspects of competition in this market that are not working well for consumers. The FCA has also provided its proposed remedies and next steps to implement these remedies.