Article 101 / 102 TFEU Procedure

ECJ rules on access to documents in gas insulated switchgear cartel. On 27 February 2014, the European Court of Justice (ECJ) handed down its judgment on an appeal brought by the European Commission (Commission) against a judgment of the General Court (Case T 344/08 - EnBW Energie Baden-Württemberg AG v Commission, Judgment of 22 May 2012) which annulled the Commission’s decision to refuse access to the case file in the gas insulated switchgear cartel (Case No 38899) based on Regulation 1049/2001. Under Article 4(2) of Regulation 1049/2001, the EC institutions shall refuse access to a document where disclosure would undermine the protection of, inter alia, commercial interests; whereas under the second subparagraph of Article 4(3), access shall be refused where disclosure of the document would seriously undermine the institution’s decision-making process. The ECJ upheld the Commission’s pleas alleging misinterpretation of Article 4(2) and (3) of Regulation 1049/2001 and set aside the General Court’s judgment. In particular, the ECJ ruled that the Commission is entitled to presume, without conducting a document-by-document review, that the disclosure of documents contained in the Commission file will, in principle, undermine the protection of the commercial interests of the parties involved and the purpose of the investigation. That general presumption does not rule out the possibility of demonstrating that a specific document disclosure of which has been requested is not covered by that presumption, or that there is an overriding public interest in disclosure of the document. The interest in obtaining damages for loss suffered as a result of a breach of Article 101 TFEU cannot, however, of itself, constitute an overriding public interest (C-365-12 - Commission v Enbw Energie Baden-Württemberg, Judgment of 27 February 2014) (see Volume 1, Edition 45).

Antitrust

General Court reduces fines imposed on InnoLux and LG Display in the LCD cartel. On 27 February 2014, the General Court handed down its judgments in the appeals brought by InnoLux Corporation and LG Display Co Ltd and LG Display Taiwan Co Ltd against the decision of the Commission on the LCD cartel (Case No. 39309). In relation to LG Display, the General Court found that the Commission incorrectly took January 2006 into account when calculating the value of LG Display's sales for the purpose of setting the fine despite having granted the company partial immunity for 2006. Accordingly, the General Court recalculated the fine imposed on LG Display at EUR 210 million (a reduction of EUR 5 million) (Case T-128/11 - LG Display Co. Ltd and LG Display Taiwan Co. Ltd v Commission, Judgment of 27 February 2014). The fine imposed on InnoLux was reduced by the General Court to EUR 2.88 million (a reduction of EUR 0.2 million) on the grounds that InnoLux had mistakenly provided the

Commission with erroneous sales data (Case T-91/11 - InnoLux Corp. v Commission, Judgment of 27 February 2014). The General Court dismissed the applicants’ other pleas, in particular, related to the concept of “direct EEA sales through transformed products” and the alleged inclusion of “internal” sales. According to the General Court, had the Commission not used the concept of “direct EEA sales through transformed products”, it would not have been able to take into account a considerable proportion of the sales of cartelised LCD panels made by cartel participants belonging to vertically-integrated undertakings even though those sales harmed competition within the EEA.

Commission accepts Visa Europe commitments in inter-bank fee proceedings. On 26 February 2014, the Commission announced that it had rendered legally binding commitments offered by Visa Europe to reduce its inter- bank fees to a level of 0.3% (a reduction of about 40-60%) and to reform its rules in order to facilitate cross-border competition (Case AT.39398) (MEMO/14/138) (IP/14/197) (see Volume 1, Edition 32).

EU Mergers

Commission sends Statement of Objections to Munksjö and Ahlstrom for providing misleading information in merger proceedings. On 25 February 2014, the Commission announced that it had sent a Statement of Objections (SO) to Ahlstrom Corporation, Munksjö Oyj and Munksjö AB. The Commission has taken the preliminary view that the parties provided misleading information in connection with the merger clearance proceedings in case M.6576. If established, such conduct would be in breach of the parties’ obligation to include their true best estimates of the markets in question and may result in a fine of up to 1% of turnover. The proceedings will have no impact on the Commission’s May 2013 clearance decision since the Commission did not base its clearance decision on the incorrect information (IP/14/189).

Phase I Clearance

M.7075 Cintra / Abertis / Itínere / BIP & DRIVE JV (18.02.2014).

M.7124 CPPIB / Intu / Parque Principado (simplified merger review) (25.02.2014).

M.7150 Apollo / Ulster Bank / Arnotts (simplified merger review) (27.02.2014).

M.7157 European Transport Holding / GIMV / Veolia Transport Belgium (simplified merger review) (21.02.2014).

UK Antitrust

Emerson and SGL Carbon settlement in carbon and graphite cartel damages action. On 17 February 2014, the Competition Appeal Tribunal (CAT) published an order withdrawing a damages claim brought by Emerson Electric and Valeo against SGL Carbon AG related to the carbon and graphite cartel. According to the Order, the claimants and SGL Carbon have agreed a confidential settlement (Case No. 1077/5/7/07) (see Volume 1, Issue 27).

Commission Publications

Commission adopts new guidelines for state aid to airports and airlines (see IP/12/458, MEMO/14/121, SPEECH/14/148).

Commission publishes overview of decisions and ongoing investigations in the context of the financial crisis (MEMO/14/126).

Commission publishes draft rules for State aids in agriculture, forestry and rural areas for comment (IP/14/185).

Commission publishes Notice on state aid recovery interest rates and reference/discount rates (2014/C 53/05, 25.02.2014).

Commission presents Deloitte’s preliminary results of the data collection regarding merchants' costs of accepting cash and card payments (MEX/19/02/2014).

EU Sanctions

Syria

EU to support the destruction of Syrian chemical stockpiles. On 17 February 2014, the European Union announced financial support to help destroy Syrian chemical stockpiles by contributing to a Trust Fund established by the Organisation for the Prohibition of Chemical Weapons (OPCW) (IP/14/151).

Zimbabwe

Council Regulation (EU) No 153/2014 of 17 February 2014 (OJ L50/1, 20.02.2014) amending Regulation (EC) No 314/2004 concerning certain restrictive measures in respect of Zimbabwe and repealing Regulation (EU) No 298/2013. The Council Regulation renews the suspension of certain travel restrictions and asset freeze measures.