Commission publishes observations on High Court EURIBOR contractual dispute. On 29 January 2018, the European Commission (Commission) published its amicus curiae observations on the disclosure of certain documents in English High Court proceedings concerning allegations that a panel of banks made contractual misrepresentations over EURIBOR in a swap agreement. This argument relies on the Commission’s 2013 Decision which found that RBS and other banks participated in a cartel in connection with EURIBOR, demonstrating knowledge of the practice. However, following a consideration of the “Pfleiderer principles” (i.e. the balance between the interests of a party claiming damages and the interests of protecting Commission leniency programmes), the Commission concluded that the settlement submissions and leniency statements should not be disclosed.

ECJ dismisses appeals in freight forwarding cartels. On 1 February 2018, the European Court of Justice (ECJ) announced that it had dismissed four appeals against General Court judgments upholding Commission fines amounting to €169 million for participation by a number of companies in air freight forwarding cartels between 2002 and 2007. The fines related to four distinct air freight services cartels which involved fixing various pricing mechanisms and surcharges. The ECJ rejected all arguments put forward by the participants and upheld the fines previously imposed, holding that the General Court was correct in basing fine calculations on the value of sales associated with freight forwarding services as a package of services on the trade routes concerned.

EU Mergers

Commission publishes Decision on Iberia’s acquisition of Vueling and Clickair assessing the merits of a bidder for slot divestments. On 1 February 2018, the Commission published the non-confidential version of its Decision assessing a proposed bidder for flight slot divestments as a condition of Iberia Líneas Aéreas de España, S.A.’s (Iberia) acquisition of Vueling Airlines, S.A. (Vueling) and Clickair, S.A. (Clickair) (M.5364). The Commission identified competition concerns for 19 routes from Spain to other European destinations, routes that 5 million passengers use annually. To allay these concerns and avoid a Phase 2 investigation, Iberia agreed to release certain slots. The Decision confirms that bidder Transavia France SAS is independent of Iberia and has provided a viable business plan, meaning it qualifies as a prospective new entrant and can provide a service under the commitments.

Commission finds Czech Road Act Amendment does not involve state aid. On 29 January 2018, the Commission concluded that the prohibition of outdoor advertising on roads in the Czech Republic under the Road Act Amendment does not involve state aid. The matter came to the Commission’s attention following a complaint from an advertising company. The Commission came to its decision because the measure is directed at improving road safety, applies to equally to all companies involved in such advertising, and does not involve the transfer of state funds.

Commission clears Czech public funding of electronic data box services. On 2 February 2018, the Commission announced that it has found that public support to Czech Post for electronic data box services between 2018 and 2022 complies with EU state aid rules. The service is an advanced electronic communication channel for public sector internal communications and for secure communications between public services and companies and individuals. It will be funded by direct grants from the state budget as a service of general economic interest.

CAT establishes confidentiality ring in Ping appeal. On 1 February 2018, the Competition Appeal Tribunal (CAT) established a confidentiality ring in Ping Europe Ltd.’s (Ping) appeal against the CMA’s £1.45 million fine for competition law infringements. The CMA’s order lays out the disclosure process for un-redacted versions of confidential and other documents to certain parties who are within the confidentiality ring. Access to the documents has been granted to the parties named in the order on the basis that they give an undertaking to maintain confidentiality. The main hearing is due to take place between 10 and 15 May 2018.

CMA banking rules on overdraft alerts come into force. On 2 February 2018, the CMA announced that, following the Retail Banking Investigation, banks must now implement customer alert systems to help customers avoid incurring unnecessary charges. In its investigation, the CMA found that banks receive approximately £1.2 billion annually from unarranged overdraft charges and it is thought that alert systems could create significant savings for many banking customers. In general, the CMA found that only 3% of personal and 4% of business banking customers switch banks annually, despite opportunities to make significant savings.

CMA to expand number of staff in Scotland. On 31 January 2018, the CMA announced that it intends to expand its Edinburgh office by hiring an additional 25 to 30 employees and has ambitions to grow further. This move is part of the organisation’s preparation for Brexit which will require increased capacity to handle greater merger review and investigatory responsibilities.

CMA serves initial enforcement order in Refresco/Cott acquisition. On 1 February 2018, the CMA announced that it had served an initial enforcement order pursuant to section 72(2) of the Enterprise Act 2002 on Refresco Group N.V. and Refresco Beverages Ltd. (Refresco) in relation to the completed acquisition of Cott Corporation, Inc. (Cott). The initial enforcement order prevents Refresco and Cott from integrating their businesses, transferring ownership or control, or committing any acts which impair independent competition. The CMA has until 14 March 2018 (subject to extension) to decide whether to accept the undertakings offered by Refresco on 17 January 2018.

CMA revokes initial enforcement order on Henderson. On 2 February 2018, the CMA released a revocation order removing the initial enforcement order on Henderson Retail Ltd. and Henderson Wholesale Ltd. (Henderson) which commenced on 7 December 2017 in connection with the acquisition of part of the Martin McColl Ltd. portfolio. Although the Phase 1 investigation is ongoing, the CMA considers that it is appropriate to revoke the initial enforcement order after reviewing the evidence it has received to date.

Sanctions

OFSI renews TAFA designation of military wing of Hizballah organisation. On 29 January 2018, the UK’s Office of Financial Sanctions Implementation (OFSI) published a General Notice of Renewal of Final Designation (Notice) in relation to the military wing of Hizballah under the Terrorist Asset-Freezing Act 2010 (TAFA). As stated in the Notice, designations may be challenged in the High Court.

Speeches

Commission publishes opening remarks by Johannes Laitenberger at the GCLC Conference. On 26 January 2018, the Commission published a series of introductory comments made by Director-General for Competition Johannes Laitenberger before the panel on “Fairness in Unilateral Practice Cases” at the GCLC Conference. Johannes Laitenberger stated that the concept of fairness is key in many of the tests applied under competition law, and touched on issues including excessive pricing and price discrimination.