ARTICLE 101 TFEU

Commission fines Telefónica and Portugal Telecom for illegal non-compete contract clause. On 23 January 2013, the European Commission (Commission) imposed fines on both Telefónica (EUR 66.9 million) and Portugal Telecom (EUR 12.3 million) for agreeing not to compete in each others’ “home” telecommunication markets, Spain and Portugal, in breach of Article 101 TFEU. The non-compete was agreed to in the context of the July 2010 acquisition by Telefónica of the Brazilian mobile operator Vivo, which until then had been jointly owned by both parties. The non-compete clause, which originally was due to run from September 2010 to the end of 2011, was terminated by the parties in February 2011, after the Commission opened antitrust proceedings. The Vivo transaction itself is not affected by the decision. Telefónica has announced that it intends to appeal the decision (IP/13/39, 23.01.2013).

CARTELS

ECJ dismisses Commission appeal against Tomkins ruling in Copper Fittings cartel. On 22 January 2013, the European Court of Justice (ECJ) dismissed an appeal by the Commission against the General Court ruling (Case T–382/06, Tomkins v Commission, judgment of 24 March 2011) that partially upheld Tomkins’ appeal in the Copper Fittings cartel (Case COMP/38121). The General Court had reduced the fine imposed on Tomkins on the basis that, in a separate action brought by Pegler (whose infringement had been attributed to its parent Tomkins), it had found that the Commission had erred in relation to the duration of Pegler’s participation (Case T–386/06, Pegler v Commission, judgment of 24 March 2011). In its appeal, the Commission argued that Tomkins could not rely on the General Court judgment in the separate action brought by Pegler. The ECJ concluded that the General Court had correctly recognized the “inextricable” link between the judgments in Pegler v Commission and in Tomkins v Commission which, in the proper administration of justice, justified the cross-reference between the two cases, and did not breach the rule on ultra petita (which prevents a court from ruling on aspects concerning addressees other than those covered by the application) (Case C–286/11 P, Commission v Tomkins, judgment of 22 January 2013).

UK ANTITRUST

OFT launches formal investigation into the provision of training services to the construction industry sector. Case Reference CE/9726/12.

EU MERGERS

Phase I Clearance

  • M.6788Goldman Sachs / TPG / Barclays / Kew Green (22.01.2013) (simplified procedure).
  • M.6731Vitronet / Infinity (22.01.2013) (simplified procedure).
  • M.6777Yazaki Europe / S-Y Systems Technologies Europe (25.01.2013) (simplified procedure).

Akzo Nobel requests CAT review of CC prohibition of Akzo/Metlac merger. The Competition Appeal Tribunal has published a notice of an application by Akzo Nobel N.V. for review of the Competition Commission's decision to prohibit the Akzo/Metlac merger on 21 December 2012 (see CC Inquiry). The CAT summary sets out the principal grounds of review on which AkzoNobel relies, including that the Commission erred in law in: concluding that AkzoNobel carries on business in the UK and could, therefore, be the subject of a prohibition order; finding that Metlac competes more aggressively on price than other competitors; and maintaining in the Decision a finding that the Transaction would lead to a loss of competition in innovation when there was no evidence to support that conclusion (Case No. 1204/4/8/13).

UK OFT to review behavioural undertakings given by IMS Health. IMS Health Inc (IMS) has requested that the UK Office of Fair Trading review behavioural undertakings accepted in 1999 following the IMS/Pharmaceutical Marketing Services Inc merger claiming that a change of circumstance justifies their release. The OFT will now advise the Competition Commission and has invited comments by 26 February 2013 (Invitation to Comment, 22.01.2013).

UK CC approves sale of Stansted Airport by Heathrow Airport Holdings (formerly BAA) to Manchester Airports Group (News Release 11/09). The sale marks the completion of the three airport disposals ordered by the CC in 2009 (News Release).

TELECOMMUNICATIONS

Commission takes Bulgaria to Court over assignment of digital terrestrial broadcasting authorizations. On 24 January 2013, the Commission announced its intention to refer Bulgaria to the ECJ over the assignment of digital broadcast spectrum. The Commission has concluded that procedures implemented by Bulgaria are based on disproportionately restrictive award conditions, leading to the exclusion of potential candidates, in breach of the applicable EU Directives on electronic communications (IP/13/46, 24.01.2013).

EU ECONOMIC SANCTIONS UPDATES

Congo

Commission Implementing Regulation (EU) No 53/2013 (OJ L 20/46, 23.1.2013) amending Council Regulation (EC) No 1183/2005 imposing certain specific restrictive measures directed against persons acting in violation of the arms embargo with regard to the Democratic Republic of the Congo. The Implementing Regulation lists additional designated persons/entities.

Guinea

Council Regulation (EU) No 49/2013 (OJ L 20/25, 23.01.2013) amending Regulation (EU) No 1284/2009 imposing certain specific restrictive measures in respect of the Republic of Guinea. The amendments concern restrictions related to military equipment and equipment which may be used for internal repression.

Libya

Council Implementing Regulation (EU) No 50/2013 (OJ L 20/29, 23.01.2013) implementing Article 16(2) of Regulation (EU) No 204/2011 concerning restrictive measures in view of the situation in Libya. The Implementing Regulation amends Annexes II and III, listing the persons, groups, and entities to whom the freezing of funds and economic resources should apply.

AlQaida

Commission Implementing Regulation (EU) No 60/2013 (OJ L 21/23, 24.1.2013) amending Council Regulation (EC) No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with the Al Qaida network.