Competition (Finland): Helsinki District Court dismisses damage claim against Stora Enso, Metsäliitto and UPM

On 22 June 2016, the Helsinki District Court ("District Court") dismissed the damage claim brought by Metsähallitus against Metsäliitto Cooperative ("Metsäliitto"), Stora Enso Plc ("Stora Enso") and UPM-Kymmene Plc ("UPM-Kymmene"). The Market Court had on 3 December 2009 imposed fines totaling EUR 51 million on Metsäliitto and Stora-Enso for illegal price cooperation and information exchange in the market for purchase of timber during 1997–2004. UPM-Kymmene received full immunity from fines for its cooperation with the Finnish Competition and Consumer Authority (“FCCA”) under the leniency program.

In its ruling, the District Court dismissed the claimant's action in its entirety and obliged it to compensate close to EUR 8,5 million (with interest) of the defendants' legal costs. The District Court dismissed the action on two grounds. Firstly, some of the individual claims were considered time-barred. Secondly, the District Court held that the defendants' anti-competitive conduct had not caused the damage alleged by the claimant (i.e a decrease in the price level for timber).
Source: Helsinki District Court Press Release 22/6/2016 (in Finnish)

Competition (Finland): Finnish Competition and Consumer Authority closes investigation into sales data sharing practices of grocery groups Kesko Food Ltd and SOK

On 15 June 2016, the Finnish Competition and Consumer Authority ("FCCA") announced that it has closed its investigation into the sales data sharing practices of grocery groups Kesko Food Ltd ("Kesko Food") and Suomen Osuuskauppojen Keskuskunta ("SOK"), because it found no proof of competition restrictions that would have required further investigation. Sales data refers to data about the products passing through grocery shops' points-of-sale, such as information about product prices, the number of products sold and the value of the sales. In Finland, the information received by suppliers is based on the sales data provided by retail chains and may be purchased from them.

The FCCA launched the investigation on its own initiative in 2014 after the entering into force of a specific amendment of the Competition Act stating that an undertaking with a 30 per cent market share on the Finnish daily consumer goods market is deemed to occupy a dominant position. Both Kesko Food and SOK occupy such a dominant position.

In this case the FCCA assessed, whether Kesko Food and SOK are obliged to disclose sales data on the one hand to their suppliers and on the other hand to data sharing operators. The FCCA found no evidence that the data sharing practices as such would impair or distort competition in the daily consumer goods market. In addition, the FCCA concluded that the elements of refusal to supply were not fulfilled. Finally, the FCCA stated that setting an obligation to disclose sales data does not necessarily have a positive effect on competition in the daily consumer goods market. Consequently, the FCCA decided to close its investigation. Source: Finnish Competition and Consumer Authority Press Release 15/6/2016

Competition (Finland): Finnish Competition and Consumer Authority closes investigation into anticompetitive practices of Finnish Association of Funeral Services

On 22 June 2016, the Finnish Competition and Consumer Authority ("FCCA") announced that it has closed its investigation into anticompetitive practices of the Finnish Association of Funeral Services. The FCCA had initial concerns that the Association of Funeral Services would have tried to affect the pricing behavior of funeral home companies. As part of its investigation, the FCCA carried out an inspection at the business premises of the Association of Funeral Services. In addition, the FCCA interviewed companies active in the field. According to the FCCA, there are no grounds to continue the investigation. The FCCA has given instructions to the Association of Funeral Services on the content of the Finnish Competition Act as well as on illegal behavior of a trade association. Source: Finnish Competition and Consumer Authority Press Release 22/6/2016 (in Finnish)

Competition: Court of Justice of European Union dismisses appeals in calcium and magnesium reagents cartel case

On 16 June 2016, the Court of Justice of the European Union ("CJEU") ruled on the appeal of SKW Stahl-Metallurgie GmbH ("SKW GmbH") and SKW Stahl-Metallurgie Holding AG ("SKW Holding") against a General Court ("GC") judgment on the calcium and magnesium reagents cartel, and the appeal by Evonik Degussa GmbH ("Evonik Degussa") and AlzChem AG ("AlzChem") against a GC judgment on the same cartel.

In July 2009, the Commission fined nine companies a total of EUR 61 million for participating in a price-fixing and market-sharing cartel for calcium carbide powder, calcium carbide granulates and magnesium granulates, in breach of Article 101 of the Treaty on the Functioning of the European Union ("TFEU"). The Commission found that SKW GmbH had participated in a price fixing cartel. Because they were 100 percent parent companies of SKW GmbH during the relevant period, the Commission held Evonik Degussa and SKW Holding jointly and severally liable for this conduct. All the addressees of the Commission decision appealed to the GC, seeking to annulment of the decision. In January 2014, the GC dismissed the appeal by SKW GmbH and SKW Holding in its entirety. The GC amended the fines imposed on Evonik Degussa and AlzChem but dismissed the other grounds for appeal. In April 2014, SKW GmbH and SKW Holding as well as Evonik Degussa and AlzChem appealed the GC judgments to the CJEU.

Concerning the appeal by SKW GmbH and SKW Holding, the CJEU found that the GC erred in law and infringed the appellants' right to be heard by holding that the Commission and the Hearing Officer could refuse to hold an oral hearing. However, the CJEU noted that such breach of rights of the defence can only lead to the annulment of the decision if the parties show that without such an irregularity the outcome of the procedure might have been different. According to the CJEU, SKW GmbH and SKW Holding failed to show that the proceedings could have led to a different result and, therefore, rejected their claim. Further, the CJEU found that the GC did not err in finding that the Commission had satisfied its obligation to state reasons. Concerning the appeal by Evonik Degussa and AlzChem, the CJEU found that the GC did not err in attributing to them liability for the anti-competitive conduct of SKW GmbH. According to the CJEU, the fact that SKW GmbH did not comply with the appellants' instructions to not get involved in any anticompetitive agreement is not sufficient to establish the absence of actual exercise of decisive influence. Accordingly, the CJEU dismissed both appeals in their entirety.
Source: Case C-154/14 P – SKW Stahl-Metallurgie GmbH, SKW Stahl-Metallurgie Holding AG v. Commission, judgement of 16 June 2016 and Case C-155/14 P –Evonik Degussa GmbH, AlzChem AG v. Commission, judgement of 16 June 2016

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 the Hotelbeds Group by Cinven and CPPIB
  • Commission approves acquisition of Sharp by Hon Hai (Foxconn)
  • Commission approves acquisition of joint control of NEP by Carlyle Group and Crestview Advisors
  • Commission approves joint acquisition of Vertafore by Bain Capital and Vista Equity Partners
  • Commission approves acquisition of Dansk Fuels by DCC
  • Commission approves acquisition of certain assets belonging to Ball and Rexam by Ardagh
  • Commission approves joint venture between INCJ, Sumitomo and Sekisui
  • Commission approves acquisition of Volker Wessels Offshore by Boskalis
  • Commission approves joint acquisition of an Italian real estate asset by SEGRO and PSPIB
  • Commission approves acquisition of Obiettivo Lavoro by Randstad