EU Competition

Appeal against Commission’s refusal to grant access to non-confidential version of EIRD cartel decision. On 25 January 2016, details were published in the Official Journal of the European Union (OJEU) of an appeal to the General Court challenging the European Commission’s (Commission’s) refusal to grant access to part of the non-confidential version of the Euro interest rate derivatives (EIRD) cartel decision. Article 2(1) of Regulation 1049/2001 gives citizens of the EU, and any natural or legal person residing or having its registered office in a member State, a right of access to documents of the institutions, subject to certain principles, conditions and limits defined in the Regulation. Articles 4(2) and 4(3) of Regulation 1049/2001 provide exceptions to the general requirement for disclosure, unless there is an overriding public interest in disclosure. The applicant, Edeka-Handelsgesellschaft Hessenring mbH (EEH), claims that the Commission erred in relying on the grounds for exemption from disclosure in Articles 4(2) and 4(3) of Regulation 1049/2001.

Details of appeals against General Court judgments on cathode ray tubes cartel. On 25 January 2016, details were published in the OJEU of appeals brought by PanasonicToshiba,Samsung and Philips to the European Court of Justice (ECJ) against General Court judgments concerning the appellants’ respective challenges to the Commission’s  cathode ray tubes (CRT) cartel decision. The main focus of each of the appellants’ appeals is the calculation of their respective fines including the decision to take into account sales of “non-cartelised” products and “transformed” products in the relevant turnover used by the Commission for the purposes of calculating the fines. Toshiba and Panasonic are also challenging the General Court’s findings in relation to attribution of liability for the cartel conduct.

Commission fines car parts producers in cartel settlement. On 27 January 2016, the Commission announced that it has imposed fines totalling EUR137,789,000 on Mitsubishi Electric and Hitachi for participating in a cartel for alternators and starters. Denso also participated in the cartel but received full immunity from fines under the 2006 Leniency Notice. The Commission’s decision was reached under the cartel settlement procedure, leading to a reduction of 10% in the fines imposed on each of the companies. The Commission found that, between September 2004 and February 2010, the three companies coordinated prices and allocated customers or projects. In particular, the companies coordinated their responses to tenders issued by car manufacturers, allocated certain car manufacturers and projects and exchanged commercially sensitive price and strategy information. Although the contacts between the companies took place outside the EEA, the Commission found that the cartel affected European customers as the affected products were sold directly to car manufacturers in the EEA.

ECJ annuls General Court judgment on requirement for “AA” rating for bank guaranteeing cartel fine. On 28 January 2016, the ECJ handed down its judgment on an appeal against a General Court judgment that upheld a Commission Decision requiring companies fined by the Commission, in a cartel decision to provide a guarantee from a bank with a long term “AA” rating. The ECJ held that the General Court’s judgment was vitiated for lack of reasoning: the General Court had not examined or assessed certain of the parties’ arguments about whether the appellants had been able to understand the reasons for this requirement. On this basis, the ECJ annulled the General Court’s judgment and referred the case back to the General Court.

State Aid

Commission opens State aid investigation into Spanish support for Iberpotash. On 26 January 2016, the Commission announced that it has opened an in-depth State aid investigation to examine Spanish State support for the mining company, Iberpotash. According to its announcement, the Commission is likely to examine the compatibility with EU State aid rules of financial guarantees provided by Iberpotash to regional public bodies to fulfil Iberpotash’s environmental protection obligations, and whether State financing of the costs incurred by one Iberpotash’s waste plants and the efforts required to reduce pollution should have been borne by Iberpotash, as the polluter.

General Court dismisses Slovenian State aid appeal regarding aid to Elan. On 28 January 2016, the General Court dismissed an appeal by Slovenia against a decision of the Commission that ordered Slovenia to recover aid granted to Elan d.o.o. (Elan) in 2008. In 2007 and 2008, Elan received two capital injections totalling EUR20 million from a number of Slovenian State companies. The Commission found that the 2007 capital injection did not amount to State aid, but that the 2008 capital injection was unlawful State aid that must be recovered. The General Court dismissed Slovenia’s appeal in its entirety, finding that the Commission had not erred in its duty to State reasons or in its assessment of the measures.

EU Mergers

ECJ dismisses appeal against General Court ruling upholding Commission re-approval of divestment purchaser in Lagardere/Natexis/VUP merger.  On 28 January 2016, the ECJ handed down its judgment on an appeal by Editions Odile Jacobs SAS (EOJ) against the ruling of the General Court dismissing EOJ’s appeal against the 2011 decision of the Commission to re-approve Wendel as purchaser of assets divested as a condition of the approval, in 2004, of the Lagardere/Natexis/VUP merger. The Commission’s original 2004 decision was annulled by the General Court in 2010, whose findings were also upheld by the ECJ.  In the present case, the ECJ rejected as, partially inadmissible and partially unfounded, EOJ’s argument that the re-approval decision did not remedy the effects of the trustee’s lack of independence originally found by the General Court and, therefore, the Commission’s adoption of the re-approval decision breached EOJ’s right to a fair hearing and negated the effectiveness of any judicial review of the measures taken by the Commission.

Phase I Mergers

  • M.7835 RANDSTAD / PROFFICE (25 January 2016)
  • M.7844 ACEK / SUMITOMO / JV (27 January 2016)
  • M.7845 HCL TECHNOLOGIES SWEDEN / VOLVO IT (28 January 2016)
  • M.7888 APAX / B&G / MANNAI / GFI INFORMATIQUE (26 January 2016)
  • M.7889 ENGIE / REC / TEN (22 January 2016)

UK Competition

CAT to hear stay application in February 2016 and extends deadline for Pilkington to make jurisdictional challenge in Peugeot damages action. On 25 January 2016, the Competition Appeal Tribunal (CAT) published an order in the damages action brought by Peugeot Citroën and others under Section 47A of the Competition Act 1998 against Pilkington Group Limited and Pilkington Automotive Limited (together, Pilkington). Pilkington has applied for a stay of the proceedings and for an extension of the time for making an application to dispute the CAT’s jurisdiction under Rule 34 of the CAT Rules 2015. A hearing has been listed for 10 February 2016 to hear the stay application. The CAT has also extended the time limit for making an application under Rule 34 of the CAT Rules 2015 until the determination of the stay application.

UK Mergers

CMA publishes fast track reference decision on Ladbrokes and Gala Coral Group merger.
On 25 January 2016, the Competition and Markets Authority (CMA) published its decision to refer the proposed merger of Ladbrokes Plc and Gala Coral Group Limited for Phase 2 investigation. The CMA made the reference using the “fast track” procedure, as requested by the parties. The decision explains the CMA’s reasons for concluding that the transaction may give rise to a realistic prospect of a substantial lessening of competition in local markets for fixed odds betting products in licensed betting offices.

Speeches & Publications

BIS consults on implementing EU Damages Directive. On 28 January 2016, the Department for Business, Innovation and Skills (BIS) published a consultation on implementing Directive 2014/104 on actions for damages for breach of competition law (the Damages Directive). BIS explains that, particularly given the reforms introduced by the Consumer Rights Act, the implementation of the Damages Directive will require relatively small changes to substantive law and procedures in the UK. However, BIS is seeking views, in particular, on whether to implement a separate regime for breaches of EU competition law (including cases where UK competition law is applied in parallel) in addition to the existing regime for breaches of just UK competition law, or whether to apply the changes to all cases involving the breach of either EU or UK competition law, or both. BIS is also asking for views on whether the Damages Directive should be implemented early, in October 2016, rather than the required transposition deadline of 27 December 2016. BIS requests responses to the consultation by 9 March 2016.