Competition: Commission sends Statement of Objections to International Skating Union on its eligibility rules

On 27 September 2016, the Commission sent a Statement of Objections to the International Skating Union ("ISU") setting out its preliminary view concerning the ISU's eligibility rules ("rules"). The ISU is the sole body recognized by the International Olympic Committee ("IOC") to administer the sports of figure skating and speed skating on ice. Its members are national ice-skating associations. The ISU rules ban skaters from international speed skating events such as the Olympic Games or the World Championship if they participate in international speed skating events that are not approved by the ISU. If skaters break these rules, they can face up to a life-time ban.

Sporting rules are subject to EU competition rules when the body setting the rules or the companies and persons affected by the rules are engaged in an economic activity. On the basis of EU decision practice, sporting rules are compatible with EU law if they pursue a legitimate objective and if the restrictions that they create are inherent and proportionate to reaching this objective.

The Commission's preliminary view and concern is that the rules unduly restrict the athletes' commercial freedom and effectively discourage them from participating in speed skating events other than those organized by the ISU or its members. This prevents new entrants, i.e., non-ISU affiliated players, from organizing alternative international speed skating events because they are unable to attract top athletes. If this concern is proven, the ISU rules may breach competition rules that prohibit anticompetitive practices. Source: Commission Press Release 27/9/2016

Public procurement: General Court dismisses appeal by Secolux against Commission procurement decision regarding access to documents 

On 21 September 2016, the General Court ("GC") dismissed an appeal by Secolux against the Commission's decision not to disclose certain documents relating to a procurement contract for safety checks of various EU buildings. Secolux claimed mainly that the Commission breached Article 4 of Regulation 1049/2001 by refusing to grant access to certain documents and that the Commission failed to provide reasons.

In 2013, the Commission issued a call for tenders relating to safety checks to be carried out at various buildings of EU institutions in Luxembourg. Secolux, the Technical Control Bureau for Construction, submitted bids but was rejected. After the rejection Secolux asked the Commission for more information on the winning bidder and for copies of certain documents. In February 2014, Secolux appealed to the GC seeking annulment of the Commission's decision to reject its bid. The GC dismissed the appeal in its entirety in 2015, finding that the Commission had not committed any procedural irregularities.

Before the 2015 GC judgment, the Commission replied to Secolux's request and granted partial access to the evaluation report and other documents, but excluding the tender of the successful tenderer. In April 2014, the Commission adopted a decision refusing Secolux further access to the remaining documents on the grounds of protecting personal and/or commercially sensitive information. Therefore, Secolux again appealed to the GC, asking the GC to annul the Commission's decision refusing to grant access to all documents relating to the contract award procedure and, in particular, the tender of the successful tenderer, the price schedule, the evaluation report of that offer and also the service contract with the contracting authority.

In the 2016 judgment, the GC recalled that Article 4 of Regulation 1049/2001 allows an institution to refuse access to documents where disclosure would undermine the protection of privacy and the integrity of the individual, in particular in accordance with EU legislation on personal data protection.
Further, the GC concluded that the Commission had not in this case infringed that Article. In particular, the GC found that the Commission did not err in considering that there was a general presumption that access to the bids submitted by the other tenderers would undermine a protected interest, and Secolux did not produce any evidence to justify reversing that conclusion. Consequently, the GC dismissed the appeal in its entirety. Source: Case T-363/14 – Secolux v. Commission, judgment of 21 September 2016 (not yet available in English, here in Finnish)

Merger control (Sweden): Swedish Competition Authority clears Com Hem's acquisition of Boxer

The Swedish Competition Authority ("SCA") has decided to approve Com Hem Communications AB's ("Com Hem") proposed acquisition of Boxer TV-Access AB ("Boxer") unconditionally. The decision was made after the SCA had carried out an in-depth investigation in July 2016.

The SCA's assessment of the acquisition's effects on competition have been based upon two aspects: Com Hem and Boxer's provision of TV services to property owners and individual households, and the purchase of TV channels from broadcasters.

According to the SCA, the investigation does not indicate that the acquisition would impede the existence or development of effective competition on television sales by distributors of TV services or purchase of TV channels. The SCA has therefore decided to unconditionally approve the proposed acquisition. Source: Swedish Competition Authority Press Release 22/9/2016 (in Swedish) and Swedish Competition Authority's Decision 21/09/2016 (in Swedish)