EU Competition

Advocate General’s Opinion on Article 102 and rebate schemes. On 21 May 2015,  Advocate General Kokott gave her Opinion on a reference from a Danish court on a series of questions relating to the assessment of rebate schemes from the point of view of Article 102 of the Treaty on the Functioning of the European Union (TFEU). In particular, the referring court is seeking to determine whether it is a legal requirement to carry out an as­efficient­competitor test in order to establish the existence of an abuse of a dominant position, and whether an appreciability threshold is applicable in the assessment of any exclusionary effect that a rebate scheme may have. While Article 102 does not require the abusive nature of a rebate scheme operated by a dominant undertaking to be demonstrated by the as­efficient­competitor test, the Advocate General Opined that national competition authorities and courts may use the test to assess cases, provided that the structure of the market does not make it impossible for another undertaking to be as efficient as the dominant undertaking.

EU Cartels

Advocate General Opinion on AC Treuhand’s appeal of General Court judgment on heat stabilisers cartel decisions. On 21 May 2015, Advocate General Nils Wahl delivered an Opinion on an appeal by AC Treuhand to the European Court of Justice (ECJ) against a General Court judgment that dismissed its action to challenge the European Commission’s (Commission’s) heat stabilisers cartel decisions. The Advocate General considered that the appeal should be upheld on the grounds that the General Court had erred in agreeing with the Commission’s finding that AC Treuhand had directly participated in the heat stabilisers cartels in breach of Article 101 of the TFEU by virtue of its administrative role in the organisation and conduct of cartel meetings.

ECJ ruling on jurisdiction issues in cartel damages actions. On 21 May 2015, the ECJ handed down its ruling on questions referred from a German court on the application of the Brussels I Regulation (Regulation 44/2001) in the context of a damages action brought by victims of an illegal cartel. The ECJ held that Article 6(1) (allowing actions to be brought in the member state of one “anchor” defendant) can apply to an action for damages (based on a Commission decision finding a single and continuous infringement of Article 101 of the TFEU) brought jointly against several defendants based in several member states who have participated in the cartel in different places and at different times. There would be a risk of irreconcilable judgments if the actions were heard separately.

General Court dismisses Timab appeal against animal feed phosphates cartel decision. On 20 May 2015, the General Court dismissed an appeal by Timab to challenge the Commission’s decision fining it for its participation in the animal feed phosphates cartel. Timab was the only addressee of the cartel decision that did not use the Commission’s cartel  settlement procedure, having withdrawn from settlement negotiations. The General Court dismissed Timab’s claim that the Commission had penalised it because of this withdrawal as the fine ultimately imposed was higher than that proposed by the Commission during the settlement negotiations.

EU Mergers

Phase I Mergers

  • M.7461 – AMDS ITALIA / CLN / JV (18 May 2015)
  • M.7550 – CRH / HOLCIM LAFARGE DIVESTMENT BUSINESS (20 May 2015)
  • M.7591 – 3i GROUP / OILTANKING GmbH / OILTANKING GHENT / OILTANKING TERNEUZEN (19 May 2015)
  • M.7597 – SABADELL / TSB (22 May 2015)

EU State Aid

Advocate General Opinion in appeal against General Court ruling on state aid in Danish railway public service contracts. On 21 May 2015, Advocate General Wathelet gave his Opinion recommending that the ECJ set aside the General Court’s judgment that annulled a Commission decision approving state aid paid to the incumbent railway company Danske Statsbaner under public service contracts. The General Court held that the Commission had erred in law in assessing the aid under Regulation 1370/2007 on public passenger transport services by rail and road rather than its predecessor Regulation 1191/69. The applicable substantive legislation was, in the General Court’s view, that which was in force at the time when the aid was paid and not at the time of the Commission’s decision, in the absence of exceptional conditions justifying retroactive application. There was no basis for Regulation 1370/2007 to be applied retroactively.

General Court dismisses appeal against Commission decision on state aid to Spanish modular housing company. On 19 May 2015, the General Court dismissed Diputación Foral de Bizkaia’s appeal against a Commission decision finding that two contracts concluded in December 2006 to support a new investment project establishing a factory of construction modules contained unlawful aid. The General Court found that the Commission was correct to consider that any aid involved in the two contracts was unlawful, since it was granted in breach of the notification obligation contained in Article 108(3) of the TFEU.

EU Trade

General Court quashes Oxalic acid antidumping duties. On 20 May 2015, the General Court annulled antidumping duties on imports from oxalic acid maker Yuanping Changyuan Chemicals. The General Court sided with the company, which claimed the Commission had used distorted data in its investigation.