On 30 May 2016, details were published in the Official Journal of Orange Polska SA's ("Orange Polska") appeal against a General Court ("GC") ruling that upheld the Commission's fining decision. Orange Polska is a telecommunications company and the legal successor of Telekomunikacja Polska SA ("TP").
In June 2011, the Commission fined TP EUR 127.5 million for abusing its dominant position on Polish broadband markets, in breach of Article 102 of the Treaty on the Functioning of the European Union ("TFEU"). The Commission found that TP deliberately sought to limit competition by placing obstacles in the way of alternative operators. For instance, TP proposed unreasonable conditions, delayed negotiation processes, rejected orders in an unjustifiable manner, and refused to provide reliable and accurate information to alternative operators. The Commission concluded that these practices, taken together, prevented alternative operators from competing effectively in the market and constituted an abuse of TP's dominant position on the Polish broadband market. In September 2011, TP appealed to the GC seeking the annulment, or partial annulment, of the Commission's decision and annulment or reduction of the fine. In December 2015, the GC dismissed the appeal.
Orange Polska has now appealed to the Court of Justice of the European Union ("CJEU"), claiming that the CJEU should annul the GC judgement and annul the Commission decision in its entirety. Alternatively, Orange Polska claims that the CJEU should reduce the fine imposed. In support of its appeal, Orange Polska raises three pleas in law. The first plea challenges the substantive validity of the finding of infringement in the Commission decision. The other two contest the amount of the fine imposed. Source: Case C-123/16 P Orange Polska SA v. Commission, Official Journal 2016 C 191/10, 30 May 2016
Competition: British Airways appeals General Court ruling on Commission's air cargo cartel decision
On 30 May 2016, details of an appeal brought on 26 February 2016 by British Airways plc ("BA") was published in the Official Journal. BA seeks to partially set aside a General Court ("GC") ruling from 2015 that partly annulled the Commission's 2010 decision on the air freight cartel, because the GC found that there is a contradiction between the grounds of the decision and its operative part, as reported earlier. Specifically relating to BA, the GC annulled the Commission's decision in so far as the Commission: considered that BA participated in the refusal to pay commission; considered that BA infringed applicable competition rules; considered that BA participated in infringements of those provisions for freight services from Hong Kong (China), Japan, India, Thailand, Singapore, South Korea and Brazil; and imposed a fine on BA.
BA has now appealed to the Court of Justice of the European Union ("CJEU") and claims that the CJEU should set aside the GC's ruling in so far as it limits the scope of the annulment of the Commission decision, i.e., BA has asked the CJEU to annul the Commission decision in full.
BA claims that the GC erred in law by applying the concept of ultra petita to constrain its actions even when the GC had of its own motion found fundamental public policy defects in the decision that vitiated the Commission's decision entirely. According to the ultra petita principle, a court may not decide more than the parties have asked. Alternatively, BA claims that even if the principle of ultra petita were correctly applied, the GC should have held that it was nonetheless free, indeed obliged, to annul the contested decision entirely in order to give effect to its conclusions that there was a defect in the decision which violated superior norms of law. Source: Case C-122/16 P – British Airways plc v. Commission, Official Journal 2016 C 191/9, 30 May 2016
Competition: Commission publishes updated statistics on cartel cases
On 26 May 2016, the Commission published updated statistics on cartel cases. The statistics include the total fines imposed in each year since 2012 and list the ten highest total and individual cartel fines since 1969. In addition, the statistics list the ten highest cartel fines per undertaking since 1969. Further, the statistics show the number of undertakings involved in the decisions and the number of cartel decisions made by the Commission each year since 2012. Finally, the statics also include data on fines imposed on undertakings as a percentage of global turnover as well as on cases decided by the Commission in the period 1990 to 2016 in five-year blocks. Source: Commission Statistics, 26/5/2016
Competition (Finland): Finnish Competition and Consumer Authority inspects coach companies
On 25 May 2016, the Finnish Competition and Consumer Authority ("FCCA") announced that it has carried out unannounced inspections at the premises of coach companies in Southwest Finland. The FCCA is investigating whether coach companies have restricted competition. The FCCA has a right to carry out inspections at company premises under the Competition Act in order to investigate competition law infringements. The fact that the FCCA carries out such inspections does not prejudge the outcome of the investigation. Source: Finnish Competition and Consumer Authority Press Release 25/5/2016 (in Finnish)
Merger control: Commission conditionally approves acquisition of building materials group Italcementi by HeidelbergCement
On 26 May 2016, the Commission announced that it has conditionally approved the acquisition of Italcementi by HeidelbergCement. HeidelbergCement and Italcementi are both global producers of cement, aggregates, ready-mix concrete, white cement and other related products. From a geographical perspective, their activities are largely complementary in the EEA. HeidelbergCement is active in Northern, Western and Central Europe whereas Italcementi focusses on Southern Europe, operating cement facilities in Italy, France, Spain and Greece. Italcementi is also active in Belgium and Bulgaria.
The Commission's investigation mainly focused on the overlaps in Belgium and adjacent regions. HeidelbergCement operates two cement production sites in Belgium as well as three production sites in the Netherlands. Italcementi operates one cement production site in Belgium, which also serves customers in France and the Netherlands, as well as several production sites in France. The Commission found that the merged entity would have held market shares above 50 percent in Belgium and the adjacent regions. Consequently, the Commission had initial concerns that the merged entity would have faced insufficient competition from remaining players and that the transaction would have led to higher prices for cement and ready-mix concrete in the area.
To address the Commission's competition concerns, HeidelbergCement offered to remove the overlap between the companies' activities in Belgium and adjacent regions by divesting the entire Italcementi business in Belgium centered around its subsidiary Compagnie des Ciments Belges S.A. ("CCB"). The Commission concluded that the proposed transaction, as modified by the commitments, would no longer raise competition concerns.Source: Commission Press Release 26/5/2016
In addition, kindly note the following merger control decisions by the Commission which are published on the website of the Commission’s Directorate-General for Competition:
- Commission approves acquisition of OSM Aviation by Norwegian and Shiphold
- Commission approves acquisition of Calypso Technology by Bridgepoint and Summit Partners
- Commission approves acquisition of joint control of Evertree by Avril, Bpifrance and Biopolymer Technologies
- Commission approves acquisition of joint control of Eurolife by Fairfax and OPG
- Commission approves joint venture between RCI Banque and Banco Bilbao Vizcaya Argentaria Colombia
- Commission approves joint venture of the non-US asset management businesses of Warburg Pincus, General Atlantic, Santander and Unicredit
- Commission approves acquisition of Sirti by Pillarstone