EU Antitrust

ECJ dismisses appeal against dawn-raid powers. On 25 June 2014, the European Court of Justice (ECJ) dismissed Nexans’ challenge of a General Court judgment which upheld a European Commission decision authorising surprise inspections in the power cables sector (Case C-37/13 P). The ECJ held that the General Court had given sufficient reasons for holding that the Commission had provided sufficient detail of the geographical scope of the suspected cartel by stating that the suspected agreements and/or concerted practices “probably have a global reach.” The Commission did not need to define the relevant market more precisely or give more details on the type of conduct suspected outside the EU or the effect of such conduct on the market.

Commission fines canned-mushroom producers in cartel settlement. On 25 June 2014, the European Commission announced that it has fined two producers of canned mushrooms under the cartel settlement procedure. The producers were fined EUR32.2 million for acting as part of a price-fixing and customer-allocation cartel. Having agreed to settle, the cartel participants had their fines reduced by 10% under the Settlement Notice. A third cartel participant received full immunity from fines under the Commission’s 2006 Leniency Notice for revealing the existence of the cartel (IP/14/727).

European Commission “Notice on agreements of minor importance which do not appreciably restrict competition under Article 101(1) of the Treaty on the Functioning of the European Union (De Minimis Notice)”, 25 June 2014. The European Commission has adopted a Notice to assist companies in understanding when agreements of minor importance are excluded from antitrust rules. Among other things, the Notice provides that agreements between actual and potential competitors are exempt if their combined market share is under 10 percent. The Notice further adds that agreements between non-competitors are exempt if each company’s market share is under 15 percent.

EU Mergers

Phase I Clearance

M.7238 – American Express Company / Qatar Holding / GBT (20.06.2014)

M.7137 – EDF/ Dalkia France (25.06.2014)

M.7257 – Carlyle / PAI / CST (20.06.2014)

State Aid

Commission Communication on state aid to promote important projects of common European interest published in Official Journal. On 20 June 2014, the European Commission published in the Official Journal its Communication on the criteria for the analysis of the compatibility with the internal market of state aid to promote the execution of important projects of common European interest (OJ 2014 C188/4). This Communication sets out the criteria that the Commission will use to assess whether a particular project is eligible for the application of Article 107(3)(b) of the TFEU and explains the Commission’s approach to the assessment of state aid for such projects. The Communication will apply from 1 July 2014 until 31 December 2020.

Commission approves €400 million aid to STMicroelectronics for the Nano2017 research programme. On 25 June 2014, the European Commission decided that aid by France to STMicroelectronics for the development of new technologies in the nanoelectronics sector is in line with EU rules on state aid (SA.37743).

Commission approves revised restructuring plan for NCG Banco following sale. On 20 June 2014, the European Commission announced that it has approved the revised restructuring plan for the Spanish bank NCG Banco following its sale to Banesco Group (SA.38143). The Commission has concluded that the revised restructuring plan continues to satisfy the rules on the restructuring of banks during the financial crisis. In particular, the sale of the bank will facilitate its early resolution, without involving additional state aid. There continue to be measures in place to prevent distortions of competition resulting from the state aid already granted to NGC.

UK Antitrust

CMA launches new Competition Act investigation into conduct in the pharmaceutical sector. On 24 June 2014, the Competition and Markets Authority (CMA) began a new investigation into a suspected breach of competition law in the pharmaceutical sector. The investigation is under Chapter II of the Competition Act 1998 and Article 102 of the TFEU. The CMA’s administrative timetable estimates that it will decide whether to proceed with or close the investigation in October 2014.

CMA decides to accept commitments relating to concerns about possible abuse in supply of road fuels in Western Isles. On 24 June 2014, the CMA decided to accept binding commitments from Certas Energy UK Limited and DCC plc to address concerns that Certas may have abused a dominant position in relation to the supply of road fuels to filling stations in the Western Isles.

UK Mergers

CMA and Ofwat concurrency Memorandum of Understanding. On 20 June 2014, the CMA published its Memorandum of Understanding (MoU) with the Water Services Regulation Authority (Ofwat) concerning the application of concurrent competition powers under the Competition Act 1998 and Enterprise Act 2002. The MoU details how the CMA and Ofwat will work more closely together in practice to achieve more competitive outcomes in the water and sewerage industry in England and Wales to benefit consumers and businesses. The MoU aims to bolster co-operation and coordination, facilitate the efficient and effective handling of cases, avoid duplication of activity and provide transparency.

CMA refers gyms merger for an in-depth Phase 2 investigation. On 26 June 2014, the CMA announced that it has decided to refer the proposed merger of Pure Gym Limited and The Gym Limited for a detailed Phase 2 merger inquiry under the Enterprise Act 2002. This is the first time that the CMA has made such a merger reference. The CMA is concerned that the combination would substantially lessen competition at a national level and in 14 local areas. The CMA is also concerned that the merger might affect potential competition because, absent the merger, the parties’ expansion plans could have led to them competing in additional local areas. However, further analysis of this is required. Terms of reference.