ARTICLE 101

Commission sends Statement of Objections to J&J and Novartis on delayed entry of generic pain-killer. On 31 January 2013, the European Commission (Commission) announced that it had issued a Statement of Objections (SO) to pharmaceutical companies Johnson & Johnson (J&J) and Novartis (COMP/39685Fentanyl). The SO relates to a so-called “co-promotion” agreement concluded between the companies’ respective Dutch subsidiaries, Janssen-Cilag and Sandoz, related to the pain-killer fentanyl. According to the Commission Press Release, the agreement provided for monthly payments by brand owner Janssen-Cilag to generic competitor Sandoz, for such time as no generic product was launched in the Dutch market (IP/13/82, 31.01.2013). The Commission has taken the preliminary view that the agreement delayed the market entry of a cheaper generic medicine in the Netherlands, in breach of Article 101 TFEU (see MEMO/13/56, 31.01.2013).

Commission closes investigation into European Minibulk and Container Feeder cooperatives. The Commission has closed its Article 101 TFEU investigation into two cooperation schemes organized by ship owners established in Germany. The Commission had concerns that a compensation system set up for owners laying-up their vessels (i.e., keeping them idle) would incentivise the withdrawal of capacity from the market. The Commission was also concerned that an information exchange scheme could have enabled the coordination of rates between competitors. The Commission agreed not to initiate formal proceedings provided the schemes abandon these two aspects of their cooperation (IP/13/82, 31.01.2013).

UK ANTITRUST

UK OFT report points to competition working well in UK road fuel sector. On the basis of the evidence collected, the UK Office of Fair Trading has concluded that competition in the UK road fuels sector is working relatively effectively (OFT 1475, 30.01.2013). The OFT has not, however, ruled out taking action at a local level in areas of the country where competition is less strong (OFT Press Release 12/13).

UK CAT Order on Tesco appeal against OFT Dairy Retail Price Initiatives decision. On 28 January 2013, the Competition Appeal Tribunal (CAT) made an Order confirming the CAT’s partial acceptance of Tesco's appeal on liability in December 2012 (see Volume 1, Issue 9). The Order also schedules a future hearing related to consequential issues, including whether the ‘2002 Initiative’ strands that were upheld by the CAT are sufficient to amount to participation by Tesco in the ‘2002 Initiative’ SCI, or should be viewed as three separate infringements, as well as the fine to be imposed on Tesco (Case No: 1188/1/1/11(1) Tesco Stores Ltd (2) Tesco Holdings Ltd (3) Tesco Plc v Office of Fair Trading, Order 28 January 2013).

EU MERGERS

Commission blocks proposed acquisition of TNT Express by UPS. On 30 January 2013, the Commission prohibited the proposed acquisition of TNT Express by UPS (M.6570 UPS / TNT Express, 30.01.2013). The Commission found that the take-over would have restricted competition on national markets for the international express deliveries of small packages in the EEA in fifteen Member States. During the in-depth assessment, UPS offered to divest TNT subsidiaries in these Member States and allow the buyer access to its intra-EU air network for five years. The Commission determined that the proposed remedies would be inadequate to address the identified competition concerns. The Commission identified four providers of express delivery services (so-called “integrators") in Europe: UPS, TNT, DHL and FedEx. The Commission concluded that in the relevant markets, integrators faced only limited competition from marginal players, including national postal operators, freight forwarders or local or national delivery companies. In addition, the Commission found that FedEx was not a significant competitor in a number of Member States. As a result, the proposed merger would have reduced the main players from three to two in those Member States (see IP/13/68, MEMO/13/48 and SPEECH/13/84, 30.01.2013)

Phase I Clearance

  • M.6797PVH / The Warnaco Group (29.01.2013) (simplified review).
  • M.6780 EVN Netz / OÖ. Ferngas Netz / Gasnetz Steiermark / Gas Connect Austria / AGGM Austrian Gas Grid Management (29.01.2013) (simplified review).
  • M.6804Mitsubishi Corporation / Mitsubishi Electric Commission / MELCO Elevator Vietnam (30.01.2013) (simplified review).
  • M.6784SFR / Librairie Fernand Nathan (25.01.2013) (simplified review).
  • M.6798CDC / BULL / JV (30.01.2013) (simplified review).
  • M.6802 Droege / ALSO-Actebis (30.01.2013) (simplified review).
  • M.6799Mitsui / PAG (31.01.2013) (simplified review).

UK MERGERS

UK Competition Commission publishes Statement of Issues on proposed Dorset NHS Foundation Trust Hospitals Merger. The Issues Statement notes that the proposed merger will combine the only two NHS district general hospitals in Bournemouth and Poole, and sets out the theories of harm to be assessed by the Competition Commission (CC) (Issues Statement, 28.01.2013). The CC has invited responses to the Issues Statement by 11 February 2013 (CC Press Release).

Case No. 1204/4/8/13Akzo / Metlac merger. The Competition Appeal Tribunal has presided over the first Case Management Conference following which the timetable for the remainder of the appeal has been scheduled, and Metlac granted permission to intervene. The main hearing has been listed on 18 April 2013 (see Volume 1, Issue 12).

PUBLICATIONS/SPEECHES

UK Government announces collective action proposals. Please click here to view a Winston & Strawn client briefing regarding the UK proposals (New help for consumers and businesses to take action against price fixing, 29.01.2013).

Speech by Vice President DG Competition, Joaquín Almunia. Introductory remarks on UPS/ TNT Express merger (SPEECH/13/84, 30.01.2013).

Speech by Vice President DG Competition, Joaquín Almunia. State aid reform and the new Regional State Aid Guidelines (SPEECH/13/92, 01.02.2013).

EU SANCTIONS

Afghanistan

Council Implementing Regulation (EU) No 86/2013 (OJ L 32/65, 01.02.2013) amending Council Regulation (EU) No 753/2011 concerning restrictive measures directed against certain individuals, groups, undertakings and entities in view of the situation in Afghanistan. The Implementing Regulation amends Annex I listing designated persons/entities.

UK SANCTIONS

Iran

Revocation of the Financial Restrictions (Iran) Order 2012. On 31 January 2013, the Financial Restrictions (Iran) Order 2012 (2012 Order) was revoked by the Financial Restrictions (Iran) (Revocation) Order 2013. The 2012 Order prohibited transactions and business relationships between UK credit and financial institutions and Iranian banks. Transfers of funds between UK and Iranian credit and financial institutions continue to be prohibited by virtue of EU Regulation 267/2012 (as amended by Article 30 of EU Regulation 1263/2012). UK HMT has revoked the 2012 Order to avoid any confusion resulting from two restrictions operating in parallel (HMT Notice 31/01/2013). The key differences from a compliance perspective are the thresholds above which licences need to be applied for.