Request for ECJ preliminary ruling on jurisdictional issues in hydrogen peroxide cartel damages action. On 12 October 2013, details of a request for a preliminary ruling from a German court on questions relating to jurisdictional issues in a follow-on cartel damages action were published in the Official Journal (OJ C 298/2, 12.10.2013). The request concerns a damages action related to the 2006 European Commission (Commission) decision on the hydrogen peroxide cartel (Case No 38620). The defendant participants are based in a number of Member States, and the infringement was implemented in several Member States. The German court has asked the European Court of Justice (ECJ) to answer questions related to the interpretation of Articles 6(1) and 5(3) of the Brussels Regulation (Council Regulation (EC) No 44/2001): in particular, whether it is expedient for the actions against all the defendants to be heard together and where the “harmful event” resulting from the illegal cartel activities occurred (Case C-352/13 – Cartel Damage Claims Hydrogen Peroxide SA (CDC) v. Evonik Degussa GmbH and others; request for a preliminary ruling from the Landgericht Dortmund (Germany) lodged on 26 June 2013).
General Court upholds Commission rejection of Vivendi complaint against France Télécom. On 16 October 2013, the General Court upheld the decision by the Commission to reject a complaint by Vivendi that France Télécom had abused a dominant position on the French broadband and telephone subscription market. The General Court found that the Commission had rightly concluded that the possibility of establishing proof of any infringement of Article 102 TFEU was very limited (Case T-432/10 – Vivendi v. Commission, judgment of 16 October 2013) (ECJ Press Release).
Commission consults on commitments offered by Samsung Electronics regarding use of standard essential patents. On 17 October 2013, the Commission invited comments on commitments offered by Samsung Electronics (Samsung) in relation to its mobile standard essential patents (SEPs). The Commission has concerns that Samsung’s seeking of injunctions in the European Economic Area (EEA) by enforcing its mobile SEPs may have amounted to an abuse of a dominant position (Case No 39939). Samsung has proposed to commit for a period of five years not to seek any injunctions on the basis of any of its mobile SEPs, present and future, against any company that agrees to a particular licensing framework (IP/13/971, 17/10/2013) (see Volume 1, Issue 9).
Phase I Clearance
- M.6987 – BP Europa / Grupa Lotos / Lotos Tank (14.10.2013) (simplified procedure).
- M.7040 – CVC / Domestic & General Group Holdings (11.10.2013) (simplified procedure).
- M.7039 – GGM / EBN / GDF Suez / Northern Offshore Gas Transport (18.10.2013) (simplified procedure).
- M.7042 – Cinven / Heidelberger Leben (14.10.2013) (simplified procedure).
Commission accepts request from Spain to review Holcim / Cemex merger (M.7054). On 18 October 2013, the Commission accepted an Article 22(1) referral request from Spain to assess under the EU Merger Regulation the proposed acquisition of Holcim’s cement operations in Spain by Cemex. The Commission concluded that it is the best placed authority to assess the potential cross-border effects of the proposed transaction (IP/13/977, 18/10/2013).
Commission consults on extension to General Block Exemption Regulation. On 11 October 2013, the Commission published a draft Regulation to extend the General Block Exemption Regulation (Regulation 800/2008) (GBER). The current GBER is due to expire on 31 December 2013 (HT.3365 – SAM – GBER review).
Commission adapts crisis rules for banks. – FAQs (MEMO/13/886, 15/10/2013).
Competition Appeal Tribunal publishes confidentiality ruling in Ryanair appeal. On 10 October 2013, the Competition Appeal Tribunal (CAT) ordered that the Competition Commission (CC) disclose to Ryanair Holdings plc (Ryanair) (in the context of a confidentiality ring) certain sections of its August 2013 prohibition decision (though anonymised to protect the identity of the third parties who provided the information) (see Volume 1, Issue 41). Ryanair submitted an application for the review by the CAT of the CC’s decision in September 2013 (Case No 1219/4/8/13) (see Volume 1, Issue 44).
Competition Commission prohibits NHS hospital merger. On 17 October 2013, the CC published a summary of its final report in the Royal Bournemouth and Christchurch Hospitals NHS Foundation Trust / Poole Hospital NHS Foundation Trust merger inquiry. The CC has confirmed its provisional finding that the anticipated transaction may significantly affect competition in numerous ‘elective’ and ‘outpatient’ services, leading to a lower standard of service (CC Press Release). The CC rejected arguments by the hospitals that the proposed merger would provide specific benefits for patients that would outweigh the harm from the loss of competition and choice (see Volume 1, Edition 35).
Office of Fair Trading publishes Diamond / Firstgroup final decision applying de minimis exception. On 18 October 2013, the Office of Fair Trading (OFT) published the full text of its August 2013 decision not to refer to the CC the completed acquisition by the Diamond Bus Company Limited (Diamond) of Firstgroup plc’s bus operations in Redditch and Kidderminster. Although the OFT found a realistic prospect of a substantial lessening of competition (SLC) in relation to the supply of bus services in Redditch, the OFT exercised the de minimis exception (£10 million threshold) (ME/5996/13).
UK Market Investigations
Competition Commission publishes final report in UK statutory audit market investigation. On 15 October 2013, the CC published its final report further to its market investigation into the supply of statutory audit services to large companies in the UK (see statutory audit services market investigation). The final decision sets out the package of remedies required by the CC in order to address the AEC. The remedy package includes measures to improve the bargaining power of companies and encourage rivalry between audit firms; to enhance the influence of the Audit Committee; and to promote audit quality and shareholder engagement in the audit process. In particular, FTSE 350 companies must put their statutory audit engagement out to tender at least every ten years and a prohibition of ‘Big-4-only’ clauses in loan documentation. It is expected that the remedies will come into force from the last quarter of 2014. The CC has stated that it will be able to amend its remedies, if necessary, in the light of any future EU measures (CC Press Release).
Speeches & Publications
Speech by Director General of DG Competition, Alexander Italianer. Fighting cartels in Europe and the US: different systems, common goals. IBA, 9 October 2013.
Joint statement from the Office of Fair Trading, the Competition Commission and Monitor. Ensuring that patients’ interests are at the heart of assessing public hospital mergers (17 October 2013).
Speech by Vice President of DG Commission, Joaquín Almunia. Competition among financial markets operators. ECMI Annual Conference, 17 October 2013 (SPEECH/13/834).
Council Regulation (EU) No. 971/2013 (OJ L 88/1, 24.3.2012) amending Article 23 of Council Regulation (EU) No. 267/2012 concerning restrictive measures against Iran. The Council Regulation amends provisions relating to the freezing of funds and economic resources.