Article 101/102 TFEU
Advocate General opines on ability to claim damages indirectly caused by a cartel. On 30 January 2013, Advocate General Kokott delivered her opinion following a preliminary reference from an Austrian court asking whether a person who was not a customer of any of the cartel participants may claim damages from cartel participants for loss caused by umbrella pricing. Umbrella pricing occurs where a company not in a cartel takes advantage of the increased market prices caused by the cartel and raises his/her own prices. According to the Advocate General, loss arising from umbrella pricing cannot be regarded as being unforeseeable by cartel participants and the reparation of that loss is consistent with the objectives of Article 101 TFEU (Case C-557/12, KONE AG, Otis GmbH, Schindler Aufzüge und Fahrtreppen GmbH, Schindler Liegenschaftsverwaltung GmbH, ThyssenKrupp Aufzüge GmbH v ÖBB - Infrastruktur AG, Opinion of Advocate General Kokott delivered on 30 January 2014) (See Volume 1, Edition 19).
Commission imposes cartel fines on flexible polyurethane foam producers. On 29 January 2014, the European Commission (Commission) imposed fines totalling EUR 114 million on four producers of flexible polyurethane foam (used primarily in mattresses, sofas, and car seats (IP/14/88). According to the Commission, the participants coordinated pricing for a five-year period in 10 Member States (Case AT.39801 – PU Foam). The participants received a 10% reduction in fines pursuant to the cartel settlement procedure introduced in June 2008.
Commission publishes Communication on format of EU Merger Regulation notifications. On 28 January 2014, the Commission published a Communication related to notifications made under the EU Merger Regulation (OJ C 25/4, 28.01.2014). The Commission requires one original paper copy, three paper copies, and two copies of the submission in CD- or DVD-ROM form. The Communication also sets out specifications for electronic formats
Phase I Clearance
- M.7063 – Vestas / MHI / JV (simplified review).
- M.7052 – Lloyds Development Capital / PostNL / TNT Post UK.
- M.7098 – Sales & Solutions / VERBUND / JV (simplified review) (28.01.2014).
- M.7110 – GIC Realty / British Land / Broadgate (simplified review) (30.01.2014).
- M.7111 – Mitsui / ArcelorMittal Gonvarri Brasil Produtos Siderurgicos / M Steel Indústria e Comércio de Produtos Siderúrgicos Ltda (simplified review) (29.01.2014).
- M.7112 – Sigma Alimentos / Campofrío (simplified review) (29.01.2014).
- M.7125 – Advent / UNIT4 (simplified review).
- M.7129 – VREP / SUDKB / Duo Plast (simplified review) (24.01.2014).
Phase II Investigations
Commission rejects Telefónica Deutschland / E-Plus referral request. On 30 January 2014, the Commission rejected a request from Germany under Article 9(2)(a) of the EU Merger Regulation related to the review of the proposed acquisition of E-Plus by Telefónica Deutschland (M.7018). The German competition authority requested jurisdiction to review the transaction instead of the Commission on the basis that the proposed transaction threatened to affect significantly competition in the retail mobile telephony market and in the market for wholesale access and call origination on mobile networks in Germany. Following an investigation, the Commission concluded that it was better placed to deal with the transaction.
High Court rules that coach concession terms granted by Luton Airport Operations are abusive. On 28 January 2014, the High Court handed down a ruling in an action by Arriva The Shires Ltd (ATS) against Luton Airport Operations Ltd (Luton Operations). ATS alleged that Luton Operations abused its dominant position, contrary to the Chapter II prohibition, in the context of award and terms of a coach concession between Luton Airport and London Victoria. ATS had operated the coach concession for 30 years. At the start of 2013, Luton Operations invited various coach operators to bid for the right to operate that route and the contract was granted to National Express. In particular, ATS alleged that the tender procedure adopted by Luton Operations was unfair and discriminated against ATS. In addition, ATS alleged that the exclusive nature of the concession awarded to National Express amounted to an abuse, and that the concession discriminated in favour of easyBus whose service was permitted to continue as an exception to the exclusivity. The High Court concluded that Luton Operations did not abuse a dominant position in the way in which they conducted the tender for awarding the new concession to National Express. However, the High Court concluded that by granting a seven-year exclusivity period to National Express, giving National Express a right of first refusal on services to new destinations in London and discriminating in favour of easyBus, Luton Operations did abuse their dominant position. The terms of the new concession seriously distort competition between coach operators wanting to provide services from Luton Airport bus station without objective justification. The trial proceeded on the assumption that Luton Operations holds a dominant position in order to expedite the proceedings which will now need to be resolved. (Arriva The Shires Ltd - v - London Luton Airport Operations Ltd  EWHC 64 (Ch)).
OFT announces cartel offence charges in galvanised steel water storage tank cartel. On 27 January 2014, the Office of Fair Trading (OFT) announced that a man has been charged under the criminal cartel offence in section 188 of the Enterprise Act 2002 (CE/9623/12). The charge relates to alleged agreements to divide customers, fix prices, and rig bids between 2004 and 2012 related to the supply of galvanised steel tanks for water storage in the UK (OFT Press Release 04/14). The OFT is conducting a parallel civil investigation pursuant to the Competition Act 1998 (CE/9691/12).
OFT applies de minimis exception to Lookers Group / Shields Land Rover merger. On 27 January 2014, the OFT published the its decision on the completed acquisition by Lookers Group plc of Shields Land Rover (ME/6145/13). While the OFT found that there was a realistic prospect that the merger would give rise to a substantial lessening of competition (SLC) in the supply of retail servicing and non-warranty repairs for Land Rovers less than three years old and/or still under warranty in the Greater Glasgow region, the OFT concluded that it was appropriate to exercise its de minimis discretion (OFT Exceptions Guidance). The merger’s impact on consumers was not expected to materially outweigh the public costs of a reference given the small size of the market (less than £10 million) and certain other factors.
Council Implementing Regulation (EU) No 74/2014 (OJ L 26/1, 29.01.2014) implementing Article 16(2) of Regulation (EU) No 204/2011 concerning restrictive measures in view of the situation in Libya. The Implementing Regulation amends Annex III, listing the persons, groups, and entities to whom the freezing of funds and economic resources should apply.