Phase I Mergers
- M.8006 CANON / TOSHIBA MEDICAL SYSTEMS CORPORATION (19 September 2016)
- M.8042 CENTRICA / NEAS ENERGY (16 September 2016)
- M.8056 EPH / PPF INVESTMENTS / VATTENFALL GENERATION / VATTENFALL MINING (22 September 2016)
- M.8068 BUNGE / WALTER RAU NEUSSER ÖL UND FETT (20 September 2016)
- M.8104 HNA GROUP / GATEGROUP (20 September 2016)
- M.8109 FIH MOBILE / FEATURE PHONE BUSINESS OF MICROSOFT MOBILE (22 September 2016)
- M.8155 COMPUTER SCIENCES CORPORATION / HEWLETT PACKARD ENTERPRISE SERVICES (19 September 2016)
- M.8176 LINDSAY GOLDBERG / FLEXIBLES GROUP (19 September 2016)
- M.8194 SEGRO / PSPIB / SELP / TILBURG I & II (19 September 2016)
European Commission grants 30% reduction in Altstoff antitrust fine due to “comprehensive” company co-operation. On 20 September 2016, Altstoff Recycling Austria (Altstoff), an Austrian waste collector and recycling company, was granted a 30% reduction in an antitrust fine in reward for its “comprehensive” cooperation with the European Commission (Commission). Altstoff acknowledged its abuse of dominance under Article 102 of the Treaty on the Functioning of the European Union (TFEU) and agreed to divest part of its household waste collection business, thus opening up the Austrian waste infrastructure to competitors and ending Altstoff’s monopoly on this infrastructure. This 30% reduction marks the first use of the fine reduction initiative announced by Commissioner, Margrethe Vestager, in February this year, as well as the first instance in which the Commission has approved a significant reduction in the fines of a company which has been accused of abusing its dominant market position.
General Court dismisses Secolux appeal. On 21 September 2016, the General Court dismissed an appeal by Secolux, the Technical Control Bureau for Construction, (Secolux) a co-operative company based in Luxembourg. Upon losing a bidding process relating to safety checks to be carried out in various buildings across Luxembourg, Secolux requested information about the winning bid from the Commission. The Commission provided the same and Secolux, finding the winning tender to be uncommercially low, requested access to further documents, in particular, the contract evaluation report, under the public procurement rules. The Commission granted limited access to the documents, and redacted the price schedule and the contract with the winning tender on grounds of confidentiality and protection of commercial interests. Secolux appealed against the Commission’s decision not to provide all parts of the documents requested, arguing that the Commission’s grounds of refusal were easily satisfied by providing anonymous versions, therefore, Secolux did not agree the Commission had provided a legitimate reason to refuse access to the requested documents. The General Court dismissed Secolux’s appeal, finding its claims unfounded and finding no evidence of procedural irregularity by the Commission.
ECJ dismisses pre-stressing steel cartel appeal. On 20 September 2016, the European Court of Justice (ECJ) dismissed an appeal by Fapricela-Indústria de Trefilaria SA (Fapricela), a member of the pre-stressing steel cartel, which the Commission fined for price-fixing. Upon previously winning their appeal in the General Court, which resulted in a fine reduction from EUR18.4 million to EUR17 million (although due to fines being capped at 10% of turnover, the same amount of EUR8,874,000 remained payable), Fapricela further appealed to the ECJ to set aside the General Court’s judgment on the basis of (i) the limited duration of Fapricela’s participation in the cartel; (ii) the errors made by the General Court in calculating the volume of sales when deciding the amount of the fine; and (iii) the disproportionality of the fine in respect of Fapricela’s involvement. As a result of the above, Fapricela requested the ECJ reduce the amount of the fine imposed on them. The ECJ dismissed this appeal on all grounds, stating that it was unable to review the General Court’s judgment unless the penalty imposed was grossly disproportionate, which the ECJ did not believe to be the case.
Commission provides guidance on what local measures fall under State aid. On 21 September 2016, the Commission announced that it has found public funding for five purely local measures does not constitute State aid as such measures are unlikely to affect intra-EU trade. EU Antitrust Head, Margrethe Vestager, stated this approach “reflects the Juncker Commission’s approach to be ‘big on big things and small on small things’”; it was made clear that Member States have full autonomy on local public support measures. The Commission considered five instances in Germany, Spain, and Portugal involving subsidies for modernisingsport facilities and a local port in Germany, government backing for local media in the Valencian and Basque languages in Spain and funding for social support services for the elderly in Portugal. The Commission found all measures were confined to local, regional markets which were unlikely to affect trade between Member States and, therefore, did not fall within the definition of State aid.
UK Competition Tribunal publishes consumer claim against MasterCard. On 21 September 2016, the UK Competition and Appeals Tribunal (CAT) published Walter Hugh Merricks’ proposed collective consumer proceedings against MasterCard relating to the period between 22 May 1992 – 21 June 2008 in which individuals bought goods from businesses in the UK using MasterCard cards. The class action for damages follows the Decision made by the Commission in 2007 that between the afore-mentioned period, MasterCard infringed Article 101 TFEU by setting a minimum price which businesses had to pay to their respective banks for accepting payment cards in the EEA.
CMA accepts Hain Frozen Foods / Orchard House undertakings. On 22 September 2016, the Competition and Markets Authority (CMA) announced that it had accepted the final undertakings received from Hain Frozen Foods UK Limited (Hain) in lieu of a Phase II investigation. Hain has agreed to divest a part of their own-label freshly squeezed fruit juice business to Multiple Marketing Ltd to address the CMA’s concerns about its acquisition of Orchard House Foods Limited.
CAT refuses Peugeot permission to appeal. On 22 September 2016, the CAT handed down its judgment refusing to grant permission for car manufacturer Peugeot to appeal the CAT’s preliminary judgment regarding the CAT’s jurisdiction in the claim for damages by the Peugeot Citroën group of companies against Pilkington Group Limited and Pilkington Automotive Limited arising from the Commission's November 2008 decision in fining companies participating in an illegal market-sharing cartel in the car glass sector. As parallel proceedings were brought in the High Court, the CAT retained jurisdiction to align the related proceedings and held that the court would be bound by foreign deadlines when proceedings are governed by foreign law (due to the substantive claim also being governed by foreign law). Peugeot had appealed this judgment on the grounds that they believed the relevant statutory provisions to be applied would satisfactorily protect any limitation interests and therefore the foreign limitation periods should be deemed irrelevant. The CAT found that Peugeot’s application did not have a “real prospect of success” and thus refused their permission to appeal.
Commission announces new approach to fair use policy on data roaming. On 21 September 2016, the Commission announced that there should be no limits on data usage on mobile devices used by consumers abroad in the EU, thus rejecting any notion of a “fair use policy” imposed by telecom operators. The draft rules currently aim to end all limitations by 15 June 2017. The College of Commissioners will adopt the final proposal by 15 December 2016, following feedback from Member States and other interested parties.
General Court announces new appointments. On 22 September 2016 the General Court announced the following nine appointments had been made, allowing the below persons to serve as Presidents of Chambers from 21 September 2016 – 31 August 2019: Irena Pelikánová, Miro Prek, Sten Frimodt Nielsen, Heikki Kanninen, Dimitrios Gratsias, Guido Berardis, Vesna Tomljenović, Anthony Michael Collins, and Stéphane Gervasoni.