Competition: Toshiba appeals General Court’s judgement on power transformers cartel

On 29 September 2014, the details were published for an appeal lodged by Toshiba Corporation (“Toshiba”) against a judgement of the General Court (“GC”) dismissing Toshiba’s appeal to challenge the Commission’s decision on the power transformers cartel. In October 2009, the Commission announced that it had imposed fines totaling EUR 67.644 million on seven companies, ABB, Areva T&D, Alstom, Fuji Electrics, Hitachi and Toshiba, for operating an illegal market sharing cartel between June 1999 and May 2003. Siemens also participated in the cartel but was granted immunity under the Commission’s 2002 Leniency Notice. Toshiba was one of the companies lodging an appeal with the GC to challenge the Commission’s decision but the GC dismissed Toshiba’s appeal on all grounds in its judgement dated 21 May 2014. Toshiba has now lodged an appeal with the Court of Justice of European Union (“CJEU”) seeking that the GC’s judgement be set aside or that the judgement should be referred back to the GC. To support its appeal, Toshiba presents four different pleas of law. Firstly, Toshiba claims that the General Court applied the wrong legal test when considering that the Japanese manufacturers of power transformers were potential competitors on the EEA market. Further, according to Toshiba, the General Court distorted the content of a letter in which another party to the proceedings stated that it would not challenge the Commission’s findings. Thirdly, Toshiba submits that the General Court gave contradictory reasoning, applied the wrong legal test for public distancing and violated the principle of personal liability by considering that Toshiba’s argument regarding its non-participation in one of the cartel meetings was ineffective. Finally, according to Toshiba, the General Court gave the wrong interpretation to paragraph 18 of the Fining Guidelines in applying global market shares as a proxy for the parties’ weight in the infringement. Source: Case C-373/14 P Toshiba Corporation v European Commission OJ C 339/16, 29/9/ and Commission Press Release 07/10/2009

State aid: Commission publishes non-confidential versions of decisions to open in-depth state aid investigations into transfer pricing arrangements on corporate taxation of Apple and Fiat Finance and Trade

On 30 September 2014, the Commission announced that it has published non-confidential versions of two decisions taken on 11 June 2014 to open in-depth state aid investigations into transfer pricing arrangements on corporate taxation of Apple in Ireland and Fiat Finance and Trade in Luxembourg. In June 2014, the Commission opened three in-depth investigations to examine whether decisions by tax authorities in Ireland, the Netherlands and Luxembourg with regard to the corporate income tax to be paid by Apple, Starbucks and Fiat Finance and Trade, respectively, comply with the EU rules on state aid. The decisions of 30 September 2014, explain the reasons why the Commission considers that Apple and Fiat Finance and Trade have received the benefit of state aid through tax rulings in the relevant member state. The main issue in each of the Commission's investigations is whether these rulings confer a selective advantage on the beneficiary in so far as they result in a lowering of tax liability in Ireland and Luxembourg, as compared to other undertakings. In particular, the Commission is concerned that the contested rulings do not comply with the "arm's length principle”, according to which commercial and financial relations between associated enterprises should not differ from relations which would be made between independent companies. Source: Commission Daily News 30/09/2014 and Commission Press Release 11/06/2014

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:

  • Commission approves joint venture between Areva and Gamesa in off-shore wind turbine sector
  • Commission approves acquisition of UBM by the Ortner Group and the Strauss Group
  • Commission approves acquisition of Spotless Group by Henkel
  • Commission approves acquisition of Schweizerische National-Versicherungs-Gesellschaft AG by Helvetia AG
  • Commission approves acquisition of Lombard International Assurance and Insurance Development Holdings by Blackstone
  • Lorem ipsum dolor sit amet.
  • Commission approves acquisition of Nidera by COFCO Corporation of China
  • Commission approves acquisition of joint control over Santander Banco de Emisiones by Warburg Pincus and Banco Santander
  • Commission approves acquisition of Weltbild Holding by Special Purpose Eins Holding