EU Antitrust

Commission consultation on proposal for revised competition regime for technology transfer agreements. The European Commission (Commission has invited comments on proposed new rules for the assessment of technology transfer agreements by 17 May 2013 (IP/13/120, 20.02.2013) (Commission FAQ). The current block exemption regulation, Regulation 772/2004, will expire on 30 April 2014.

Commission decides against extending or renewing maritime transport antitrust guidelines. The Commission will not prolong or renew guidelines adopted in July 2008 (see IP/08/1063) on the application of Article 101 TFEU to maritime transport services. The current maritime guidelines expire on 26 September 2013 (IP/13/122, 19/02/2013).

UK Antitrust

UK Competition Commission issues Summary of provisional findings on audit market. On 22 February 2013, the UK Competition Commission (the CC) published a Summary of its provisional findings (the Summary) as part of its market investigation into the supply of statutory audit services to large companies in the UK (the CC Market Investigation) (see Statutory Audit Services Market Investigation). The CC has provisionally found an adverse effect on competition (AEC) within the meaning of section 134(2) of the Enterprise Act 2002. The features identified as giving rise to an AEC fall within two main theories of harm: first, the reluctance of companies to switch auditors and related barriers to expansion and selection of audit firms; and second, the extent to which auditors represent shareholder interests. The CC has published a Notice of possible remedies (the Notice) setting out seven possible actions which the CC might take in order to remedy, mitigate or prevent the AEC, and has invited comments on the Notice by 18 March 2013. The CC’s Final Report is currently expected in August 2013, with the statutory deadline set for 20 October 2013 (CC Press Release).

OFT imposes fines totalling £2.6 million on Mercedes-Benz and three commercial vehicle dealers. On 21 February 2013, the Office of Fair Trading (OFT) announced that Mercedes-Benz and three dealers of Mercedes-Benz commercial vehicles (trucks and vans) had admitted infringing the Chapter I prohibition of the Competition Act 1998 and agreed to pay fines totalling £2.6 million (including a 15 percent reduction). The settlements follow the issue of a Statement of Objections to Mercedes-Benz and five dealers in the context of a formal investigation launched by the OFT in January 2010 (see Investigation into the distribution of Mercedes-Benz commercial vehicles). Proceedings against the remaining two dealers are being dealt with under the OFT’s normal administrative process (OFT Press release 16/13).

EU Mergers

Beninca challenges Commission refusal of access to NYSE Euronext / Deutsche Börse document. In an action brought on 19 December 2012, Mr. Beninca has requested that the General Court annul the Commission’s decision refusing access to a document produced during the NYSE Euronext/ Deutsche Börse merger proceedings (see COMP/M.6166 – Prohibition Decision). According to the applicant, none of the exceptions to the general duty of disclosure listed in Article 4 of Regulation 1049/2001 on public access to documents of the EU institutions applies (Case T-561/12, Beninca v Commission, Action brought on 19 December 2012).

Phase I Clearance

  • M.6852CVC Capital Partners / Cerved Holding S.p.A. (15.02.2013) (simplified review).
  • M.6773Canon / IRIS (IP/13/124) (18.02.2013)
  • M.6787IHI Corporation / IHI Charging Systems International (19.02.2013) (simplified review).
  • M.6812SFPI / Dexia (MEX 13/22.02) (see also IP/12/1447).

UK Mergers

Competition Commission approves Rank / Gala Casinos merger subject to remedies. The Competition Commission (CC) has published its final report on the anticipated acquisition by The Rank Group Plc of Gala Casinos Limited (Final Report and Appendices). Following the merger, the number of large UK national casino operators will be reduced from three to two. The CC has prohibited the acquisition of four of the twenty three Gala casinos, and ordered the upfront divestiture by Rank of a “cold” licence (see Rank / Gala Casinos CC merger inquiry).

Competition Commission announces adverse provisional findings on Eurotunnel / Seafrance merger inquiry. The CC has announced its provisional findings on the completed acquisition by Groupe Eurotunnel S.A. of certain assets of former Seafrance S.A. (Summary of Provisional Findings). The CC has provisionally concluded that the transaction may be expected to result in a SLC in the freight and passenger markets. In the provisional view of the CC, the SLC may be expected to lead to an increase in prices charged, and a worsening of service quality. The CC has invited comments on possible remedies by 5 March 2013 (Notice of possible remedies), and the CC is required to publish its final report by 14 April 2013 (see Eurotunnel / Seafrance CC merger inquiry).

Notable Developments in Other Jurisdictions

Denmark

Danish Supreme Court rules that Post Danmark pricing is not contrary to Article 102 TFEU. On 15 February 2013, the Danish Supreme Court annulled the 2004 finding of the Danish Competition Authority (Konkurrencerådet) that Post Danmark had abused its dominant position by means of exclusionary loyalty rebates and discriminatory prices on the market for unaddressed bulk mail, contrary to Section 11 of the Danish Competition Act and Article 102 TFEU. The ruling follows a reference to the ECJ for a preliminary ruling in April 2010 (Case C–209/10, Post Danmark A/S v Konkurrencerådet, Judgment of 27 March 2012). In that preliminary ruling, the ECJ concluded that a dominant undertaking’s selective pricing, which is below average total costs and above the average incremental costs, will not constitute an abuse of dominance infringing Article 102 TFEU, where there is no intent to eliminate competitors.

TELECOMS

Speech by Vice-President of the European Commission responsible for the Digital Agenda, Neelie Kroes:Thinking European, and winning the wireless race” (Radio Spectrum Policy Group, Brussels, 20 February 2013) (SPEECH/13/140).

Ofcom announces winners of the 4G mobile auction. 4G mobile spectrum has been awarded to Everything Everywhere Ltd, Hutchison 3G UK Ltd, Niche Spectrum Ventures Ltd (a subsidiary of BT Group plc), Telefónica UK Ltd and Vodafone Ltd (OFCOM Press Release).

Publications/Speeches

State aid: Commission publishes updated Guide on services of general economic interest (SGEI) (IP/13/123) (18/02/2013).

Speech by European Commissioner for the Internal Market and Services, Michel Barnier. “Single European Patent: a major achievement but still some way to go” (SPEECH/13/132) (18/02/2013).

Speech by Vice President DG Competition, Joaquín Almunia. “Competition for the benefit of the single market” (SPEECH/13/151) (22/02/2013) (in the French language).

EU Sanctions

Al-Qaida

Commission Implementing Regulation (EU) No 132/2013 (OJ L 45/6, 16.02.2013) amending Council Regulation (EC) No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with the Al-Qaida network. The Implementing Regulation amends Annex I listing designated persons/entities.

North Korea

Commission Implementing Regulation (EU) No 137/2013 (OJ L46/19, 19.2.2013) amending Council Regulation (EC) No 329/2007 Council Regulation (EC) No 329/2007 concerning restrictive measures against the Democratic People’s Republic of Korea. The Implementing Regulation amends Annexes IV and V listing designated persons/entities.

Zimbabwe

Commission Implementing Regulation (EU) No 145/2013 (OJ L47/63, 20.02.2013) amending Council Regulation (EC) No 314/2004 concerning certain restrictive measures in respect of Zimbabwe. The Implementing Regulation removes designated persons/entities from Annexes II and III.