EU Antitrust

General Court dismisses easyJet appeal against Commission rejection of complaint alleging abuse of dominance by Schiphol airport. On 21 January 2015, the General Court handed down its judgment dismissing the appeal brought by easyJet Airline Co. Ltd (easyJet) to challenge the European Commission’s decision to reject its complaint alleging an infringement of Article 102 of the TFEU by N.V. Luchthaven Schiphol (Schiphol). The General Court concluded that, in rejecting a complaint on the basis of Article 13(2) of Regulation 1/2003, the Commission can rely on the ground that a national competition authority (NCA) has previously rejected that complaint on priority grounds, even if the NCA has not taken a decision within the meaning of Article 5 of Regulation 1/2003. Moreover, the Commission can rely on the ground that a NCA has previously rejected that complaint when investigating under separate provisions of national law, as long as that review was conducted in the light of the rules of EU competition law. Finally, the General Court concluded that the Commission had fulfilled its obligation to state reasons by setting out, clearly and unequivocally, the factual and legal considerations which led it to conclude that the likelihood of establishing the existence of an infringement of Article 102 of the TFEU was no more than very limited (Case T-355/13 - easyJet Airline Co. Ltd v European Commission, judgment of the General Court handed down 21 January 2015).

EU Mergers

Phase I Merger

M.6796 – Agean / Olympic II (22/01/2015)

M.7464 – Bladt Industries / EEW Special Pipe Constructions / TAG Energy Solutions Limited’s Assets (21/01/2015)

M.7468 – Oji Holdings / Itochu Corporation / Joint Venture (19/01/2015)

M.7472 – Rhône Capital LLC / The Goldman Sachs Group Inc / Neovia Logistics LLC (19/01/2015)

State Aid

Advocate General’s opinion on Commission appeal against General Court annulment of Commission decision on state aid to Hungarian oil and gas company. On 22 January 2015, Advocate General Wahl handed down his opinion on an appeal by the European Commission against a General Court ruling annulling the Commission’s decision that aid granted to the Hungarian oil and gas company MOL was incompatible with the internal market. The aid measure comprised two components: a 2005 agreement that extended MOL’s mining rights and set mining fees for the duration of an agreement, and a 2008 amendment to the Mining Act that increased mining fees set by general law that applied to MOL’s competitors. Although the Advocate General considers that the General Court’s examination of the 2005 agreement in isolation was “somewhat problematic”, he rejects the Commission’s claims that the General Court erred in its examination of selectivity of the aid measure (Case C-15/14 P - European Commission v MOL Magyar Olaj - és Gázipari Nyrt, Advocate General’s opinion, 22 January 2015).

Commission approves UK state aid for Teeside biomass CHP plant. On 22 January 2015, the European Commission announced that it has decided to approve, under the state aid rules, UK support for the construction of a combined heat and power (CHP) plant in Teeside. The Commission has approved the state aid to be granted to the operator of the plant, finding that it is in accordance with the 2014 Guidelines on state aid for energy and environmental protection. In particular, the aid is proportionate, the project will contribute to the achievement of environmental targets and there are safeguards to prevent distortions of competition.

UK Mergers

CMA decision on acquisition by Chelsea and Westminster NHS Foundation Trust of West Middlesex University NHS Trust. On 19 January 2015, the Competition and Markets Authority (CMA) published the full text of its decision on the anticipated acquisition by Chelsea and Westminster NHS Foundation Trust of West Middlesex University NHS Trust. The CMA announced its decision not to refer this merger for a Phase 2 investigation on 19 December 2014.

CAT refuses SeaFrance permission to appeal. On 20 January 2015, the Competition Appeal Tribunal (CAT) handed down a ruling on application by Société Coopérative de Production SeaFrance SA (SCOP) for permission to appeal against the CAT’s judgment confirming jurisdiction of UK authorities to review the Groupe Eurotunnel/ Sea France merger. The CAT has refused permission to appeal, finding that there is no compelling reason for review by the Court of Appeal and that the grounds set out in the application for permission to appeal do not have a real prospect of success.

Speeches & Publications

Draft legislation to deliver more powers to Scottish Parliament: competition and regulatory issues. On 22 January 2015, the government published draft legislation to deliver more powers to the Scottish Parliament. In particular, the draft legislation will amend section 132(5) of the Enterprise Act 2002 to provide that the ministerial power to make market investigation references can be exercised by the Scottish Ministers and the Secretary of State acting jointly; or the Scottish Ministers, the Secretary of State and one or more than one other Minister of the Crown, acting jointly. There is also draft legislation to strengthen the accountability of Ofgem and Ofcom to the Scottish Parliament.