EU Mergers 

Phase I Mergers 

  • M.8739 KURARAY / PTTGC / SUMITOMO / JV (24 May 2018)
  • M.8831 MONDI / POWERFLUTE (24 May 2018)
  • M.8833 ALPS / ALPINE (25 May 2018)
  • M.8857 EDENRED / UTA (24 May 2018)
  • M.8872 ADVENT INTERNATIONAL / LAIRD (25 May 2018)

EU Competition  

General Court dismisses StyleLounge’s application to intervene in Google shopping case appeal.

On 16 May 2018, the General Court handed down its judgment dismissing StyleLounge’s application to intervene in the appeal proceedings brought by Google LLC and Alphabet Inc. (together, Google) against a Commission decision. The Commission previously found that Google breached Article 102 of the Treaty of the Functioning of the European Union (TFEU) and fined Google €2.42 billion for its abuse of dominance. StyleLounge’s application to intervene was dismissed on the grounds that an application to intervene must be submitted within 6 weeks of the publication of a notice in the Official Journal of the European Union (OJEU), indicating a summary of the details of the proceedings being initiated, whereas StyleLounge’s application was made after the expiry of the 6-week time limit. 

Commission imposes binding obligations on Gazprom to ensure gas supply at competitive prices in the EU.

On 24 May 2018, the Commission adopted a decision imposing on Gazprom a set of obligations that addresses the Commission’s competition concerns and seeks to ensure the free flow of gas at competitive prices in Central and Eastern Europe. According to the Commission, Gazprom is a dominant gas supplier in a number of Central and Eastern European countries. The Commission previously took the preliminary view that Gazprom breached EU competition rules by pursuing an overall strategy that partitioned markets along national borders in eight Member States (Bulgaria, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland and Slovakia). This enabled Gazprom to charge higher prices in at least five of these Member States. The Commission has now imposed a set of rules on Gazprom’s operations, including removing contractual or cross-border barriers to the free flow of gas, imposing an obligation that gas flows to and from isolated markets, and preventing Gazprom from leveraging its dominance when supplying gas.

Commission publishes written observations on multilateral interchange fees set by Visa and Mastercard.

On 23 May 2018, the Commission published its written observations made in February and April 2018 on the damages claims arising from the multilateral interchange fees (MIFs) set by Visa and Mastercard. The observations were made before the English High Court. In its February observations, the Commission considered several issues, including whether MIFs restrict competition compared to a default rule for settlement at par, and the availability of the Article 101(3) TFEU exemption for MIFs. In its April observations, the Commission considered issues relating specifically to the Phillips J Exemption Judgment, including whether Phillips J erred in the standard of proof applied to exemption question in the Visa case.  

State Aid 

Commission approves extension of Irish credit union resolution scheme. 

On 25 May 2018, the Commission approved the prolongation of an Irish scheme for the orderly winding-up of credit unions. This scheme was found to be in line with state aid rules and the 2013 Banking Communications. The scheme is aimed at safeguarding financial stability when a credit union fails to meet regulatory requirements, and has been prolonged until 30 November 2018. 

UK Competition 

CMA publishes non-confidential version of infringement decision in relation to household fuel cartel.

On 25 May 2018, the CMA published a full text, non-confidential version of its decision finding that two of the main suppliers of bagged household fuels had infringed EU and UK competition law. The CMA imposed a total fine of £3,444,381 on CPL Distribution Limited and CPL Industries Holdings Limited (together, CPL) and Fuel Express Limited, Fuel Express (Bagnalls) Limited, Carbo (UK) Limited, and G.N. Grovesnor Limited (together, Fuel Express) for market sharing, bid-rigging, and exchanging commercially sensitive information between June 2010 and February 2011. The full text decision sets out the CMA’s reasoning and the relevant facts that led to the CMA’s decision. In addition to the decision, the CMA also published a short case study to help explain illegal market sharing and bid-rigging to businesses. 

UK Mergers 

CMA publishes decision on acquisition of Nisa Retail by Co-op.

On 21 May 2018, the CMA published its decision taken on 23 April 2018 on the anticipated acquisition by Co-operative Group Ltd (Co-op) of Nisa Retail Ltd (Nisa). Both parties are active at different levels of the grocery supply chain, with Co-op operating at retail level and Nisa operating at wholesale level. The CMA investigated whether the proposed merger would lead to an increase in wholesale prices or a decrease in the quality of its services. The CMA concluded that there is sufficient wholesale competition which would prevent the merged entity from pursuing a wholesale to retail strategy. Therefore, the merger does not give rise to a realistic prospect of a substantial lessening of competition and will not be referred for a Phase 2 investigation.  

Secretary of State issues written statement on merger between Comcast Corporation and Sky

On 21 May 2018, the Secretary of State for Digital, Culture, Media and Sport published a written ministerial statement on the proposed merger between Comcast Corporation and Sky plc. Under section 58 of the Enterprise Act 2002, the Secretary of State has the powers to intervene in certain media mergers on public interest grounds. The Secretary of State confirmed that he will not intervene, as the merger does not raise public interest concerns that would meet the threshold for intervention. However, the Secretary of State will take into account the written representations submitted by interested parties prior to 24 May 2018 before making a final decision.  

CMA publishes decision on SSE Retail/Npower merger and anticipated acquisition of material influence by Innogy over the merged entity. 

 On 21 May 2018, the CMA published its full decision given on 26 April 2018 in relation to the merger between SSE plc (SSE Retail) and Npower Group plc (Npower), and the anticipated acquisition of material influence by Innogy SE over the merged entity. The parties overlap in the retail supply of electricity and gas to domestic customers in the UK. The CMA concluded that the merger gives rise to a realistic prospect of a substantial lessening of competition in relation to the supply of electricity and/or gas to domestic customers in the UK. This is due to the horizontal unilateral effects from the loss of rivalry in the setting of standard variable tariff prices. On 8 May 2018, the CMA announced that the merger has been referred for an in-depth Phase 2 investigation. 

CMA publishes guide on good practice in the design and presentation of customer survey evidence in merger cases.

On 23 May 2018, the CMA published a guide providing information on customer survey research for merger cases. In particular, the guide provides helpful information on the uses of surveys in merger cases, the design of surveys, the style of questionnaire, and the interpretation and display of survey results. The guide also provides example surveys that may be useful. 

CMA publishes notice of extension of investigation into acquisition by Flogas Consumer of the LPG supply business of Countrywide Farmers.

On 24 May 2018, the CMA published a notice of extension in relation to its Phase 1 investigation into the completed acquisition by Flogas Consumer Limited (Flogas) of the LPG supply business of Countrywide Farmers PLC (Countrywide). The reason for the extension is due to Flogas’ parent company, DCC Limited’s (DCC) failure to provide certain information required by the CMA within the specified deadline. Accordingly, the extension will be implemented until DCC provides the relevant information. 

CMA issues consultation notice for undertakings offered in relation to Tarmac Trading’s acquisition of certain assets of the Breedon Group

On 25 May 2018, the CMA issued a consultation on the undertakings offered by Tarmac Trading Limited (Tarmac) in relation to its acquisition of 27 ready-mix concrete plants, a marine aggregates terminal at Briton Ferry, and certain assets used in connection to the ready-mix concrete plants from Breedon Group PLC (Breedon). On 26 April 2018, the CMA referred the merger to a Phase 2 investigation and on 3 May 2018, Tarmac proposed undertakings in lieu of the CMA’s reference. Tarmac has proposed not to acquire ready-mix plants in the local areas identified by the CMA as likely to result in the substantial lessening of competition. Before reaching a decision on whether to accept the proposed undertakings, the CMA invites interested parties to comment on these undertakings. Representations should be made in writing by 8 June 2018.