Competition: General Court rejected the appeals by Deutsche Bahn and its subsidiaries against unannounced inspections at their premises

The General Court (“GC”) handed down its judgment dismissing the appeals brought by Deutsche Bahn and a number of its subsidiaries against three Commission decisions of 2011 that authorized unannounced inspections (so-called dawn raids) at their premises. The GC dismissed the appeals on all grounds and confirmed the legality of the Commission's inspection decisions. The GC considered firstly that the Commission's decisions did not infringe the applicants' fundamental rights to inviolability of premises due to the lack of prior judicial authorization. The GC noted that the European Court of Human Rights’ case law recognizes that the absence of prior judicial authorization does not mean that an inspection will be unlawful as such absence can be compensated for by proper protective guarantees, which were at hand in this case. The Commission also considered that the decisions did not infringe Deutsche Bahn’s fundamental right to effective legal remedy due to the lack of opportunity for prior judicial review of the inspection decision. The GC considered that Deutsche Bahn’s understanding of relevant case law in this respect was erroneous. The GC also rejected Deutsche Bahn's claim that the Commission's second and third decisions were unlawful because they were based on information obtained by the Commission in the course of implementing the first inspection decision, in the context of a very broad inquiry (amounting to a fishing expedition). The GC further considered that the reasoning for the subject matter of the decisions was not disproportionately wide or non-specific and therefore the Commission had not infringed Deutsche Bahn’s right of defense, and that the Commission had not violated the principle of proportionality with the inspections decisions or the inspections, having regard to their context. Source: Joined cases T-289/11, T-290/11 and T-521/11

Merger control: Commission approves acquisition of Shell's Harburg refinery assets by Nynas AB of Sweden

Following an in-depth investigation, the European Commission approved the proposed acquisition of certain refinery assets of Shell Deutschland Oil GmbH (“Shell”) in Harburg, Germany by Nynäs AB (“Nynäs”), of Sweden. Nynäs is active globally in the production of naphthenic base, process and transfer oils (“TFO”) and has its core business in Nynäshamn, Sweden. Shell is part of the Shell group of companies which is a fully integrated global energy and petrochemical producer. The Commission conducted an in-depth, second phase investigation as the merged entity would have become the only naphthenic base and process oil producer and the largest producer of TFO in the EEA. The Commission’s in-depth investigation showed that even in the absence of the proposed acquisition, the Harburg refinery activities were likely to cease significantly reducing (even below the level of demand) the production capacity in the EEA market for naphthenic base and process oils, and leading to higher consumer prices. Thus, Commission found that the reduction of the number of competitors in the market would occur even if the proposed acquisition would not take place. Accordingly, the Commission concluded that the proposed acquisition would not significantly impede effective competition in the EEA or any substantial part thereof. Source: Commission Press Release 2/9/2013

Merger control (Sweden): The Swedish Competition Authority approved KPA’s acquisition of SPP’s operation on the market for pension administration after an in-depth investigation

Following an in-depth investigation, the Swedish Competition Authority (“SCA”) approved KPA Pensionsservice AB’s (“KPA”) proposed acquisition of SPP Liv Pensionstjänst AB (“SPP”) and SPP’s life insurance portfolio within the area of KAP-KL. KPA focuses on pension insurance services whilst SPP’s portfolio is broader. The SCA’s in-depth investigation showed that SPP was likely to leave the market irrespective of whether the proposed acquisition took place or not. This was due mainly to the poor financial status of SPP and the fact that there were no foreseeable alternative purchasers. Therefore, the SCA concluded that the acquisition would affect competition on the market only to a limited extent and accordingly approved the proposed acquisition. Source: The Swedish Competition Authority’s press release 10/09/2013

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