Competition: The General Court confirms, on the whole, the lawfulness of the requests for information sent by the Commission to cement manufacturers

On 14 March 2014, the General Court (“GC”) handed down its judgment in relation to actions brought by several cement companies against the Commission’s decisions of 30 March 2011 constituting binding requests for information in the context of the Commission’s investigation of the cement companies regarding alleged antitrust infringements. In the said decisions, the Commission requested the cement companies to respond to a broad questionnaire relating to the alleged infringements. The cement companies brought seven actions for annulment of the Commission’s decisions, claiming that the Commission failed to provide an adequate explanation of the presumed infringements referred to in the requests for information and that the Commission imposed on them a disproportionate workload in relation to the volume of information requested and the particularly binding response format. The GC rejected all these actions, with the exception of the action brought by Schwenk Zement, which it accepted partially. As regards the majority of the actions the GC took the view that the alleged infringements, although set out in very general terms which might well have been made more precise, have the minimum degree of clarity in order to be able to be considered to be consistent with the requirements of EU law. Moreover, the GC found that the size of the workload caused by the volume of information and the very high degree of precision in the response format imposed by the Commission cannot be reasonably disputed. However, the Court concludes that that workload is not disproportionate in the light of the necessities of the enquiry and the extent of the presumed infringements. With regard to Schwenk Zement’s action, the GC took the view that the timeframe of two weeks granted to Schwenk Zement to respond to the 11th series of questions was insufficient. The GC held that the timeframe granted must allow the addressee to give a substantive response, but also to ensure the complete, accurate and non-distorted nature of the information provided. The GC further provided details on the assessment of the non-arbitrary nature of a request for information, stating that a request must seek to collect the necessary documentation in order to verify the truth and the scope of situations of fact and of law in respect of which the Commission already has information in the form of sufficiently serious evidence consistent with the suspicion of an infringement of competition rules. Source: General Court’s press release 14/3/2014

Merger Control: Commission conditionally approves acquisition of Spanish metal food cans producer Mivisa by rival Crown

The Commission has conditionally approved the proposed acquisition of Mivisa Envases, S.A.U. (“Mivisa”) of Spain by Crown Holdings, Inc. (“Crown”) of the United States. Both parties are active in the manufacture of metal food cans used for fruit and vegetables, fish and seafood, pet food as well as ready-made meals. According to the Commission, the proposed transaction, as originally notified, would have created very high market shares in the Benelux, France, Spain and Portugal and would have eliminated an important and aggressive competitor from the market, Mivisa. In each area, only one sizeable competing supplier would have remained and the Commission considered that this remaining supplier would have had limited incentives to compete with the created entity. Furthermore, the Commission found that other players would also have had limited ability to supply customers with large volumes and product ranges. To address the Commission’s concerns, Crown offered to divest its metal cans plants in Spain. In addition, Mivisa’s plant producing metal food cans in the Netherlands will be divested. In view of these commitments, the Commission concluded that the proposed acquisition would not significantly impede effective competition in the EEA or in any substantial part thereof. Source: Commission Press Release 14/3/2014

Merger Control (Sweden): The Swedish Competition Authority opens an in-depth investigation into the acquisition of Svensk Fastighetsförmedling AB by Swedbank Franschise AB

On 21 January 2014, Swedbank Franschise AB (‘’Swedbank’’) notified its acquisition of all shares (‘’Acquisition’’) in Svensk Fastighetsförmedling AB (‘’SF’’) to the Swedish Competition Authority (‘’SCA’’). The Acquisition was not notifiable under the merger control rules in the Swedish Competition Act, but the SCA used its power to request a notification nevertheless. SF and Swedbank both operate as real estate agents on the Swedish market. Swedbank, through its subsidiary Swedbank Fastighetsbyrå, is currently the leading brand on the market, with a national market share of approximately 21 per cent and SF is the second largest brand with a national market share of approximately 15 per cent. Hemnet is a website that is partly owned by Swedbank and SF. The website focuses on compiling a vast amount of up-to- date real estate advertisements and is considered to be the leading real estate website on the Swedish market. Post acquisition, Swedbank will control 50 per cent of Hemnet combined with additional control via its membership in the Real Estate Agents Association (Sw. Mäklarsamfundet). The SCA resolved on 18 March 2014, to open an in-depth investigation and has until 10 June 2014 to decide whether to approve the Acquisition or initiate proceedings before the Stockholm District Court. Source: The Swedish Competition Authority Press Release 18/03/2014

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 clears acquisition of Topaz Energy and Resource Property by Kendrick Investments
  • Commission clears acquisition of sole control of Newedge Group by Société Générale
  • Commission clears acquisition of joint control over NATS by USS,British Airways,easyJet,Monarch