Damages Actions

Europe adopts antitrust damages Directive. On 17 April 2014, the European Parliament approved the text of a Directive on antitrust damages actions. The agreed text of the Directive has now been sent to the EU Council of Ministers for final approval. The Directive is based on the June 2013 European Commission (Commission) proposal (see IP/13/525 and MEMO/13/531) and aims to remove national procedural obstacles and legal uncertainty in relation to private claims for damages in respect of competition law infringements. In particular, the Directive establishes rules to ensure access to relevant evidence and common limitation periods. The Directive also clarifies the application of the “passing on defence”. The Commission has welcomed the Parliament vote (see IP/14/455, Key Documents and FAQs).

Cartels

ECJ dismisses appeal on industrial bags cartel. On 30 April 2014, the European Court of Justice (ECJ) dismissed in its entirety an appeal brought by FLSmidth related to the 2005 Commission decision on the industrial bags cartel (Case COMP/38354). In particular, the ECJ confirmed that FLSmidth could not obtain a reduction under the Leniency Notice because at the time when the leniency applicant concerned actually cooperated with the Commission it no longer formed an undertaking with FLSmidth (Case C-238/12, FLSmidth & Co A/S v. Commission, judgment of 30 April 2014).

Advocate General opines on inclusion of internal sales turnover for purposes of calculating cartel fine. On 29 April 2014, Advocate General Wathelet (AG) handed down his Opinion on an appeal by Guardian Industries Corp and Guardian Europe Sarl (Guardian) against a General Court judgment (Case T-82/08) related to the 2007 Commission decision on the Flat Glass cartel (Case COMP/39.165). The AG has opined that the General Court erred by upholding the Commission's decision to exclude internal sales from the turnover used for calculating the fines imposed. This approach discriminated against Guardian which was the only one of the cartel participants that was not vertically integrated. Accordingly, the AG considers that the fine imposed on Guardian should be reduced by 37% (from EUR 148 million to EUR 93 million) (Case C-580/12 P Guardian Industries Corp. v. European Commission, Opinion delivered on 29 April 2014).

Dominance

Commission accepts legally binding commitments from Samsung on standard essential patents. On 29 April 2014, the Commission announced that it had rendered legally binding commitments offered by Samsung to licence its standard essential patents for 3G mobile devices on fair, reasonable, and non-discriminatory terms (FRAND) (IP/14/490).

EU Mergers

Phase I Clearance

  • M.7083 – John Wood Group / Siemens / JV (IP/14/475) (24.04.2013).
  • M.7109 – Deutsche Telekom / GTS Central Europe (IP/14/450) (14.04.2014).
  • M.7115 – GLSV / Kuraray (IP /14/498) (subject to conditions) (29.04.2014).
  • M.7134 – Volvo Construction Equipment / Terex Corporation (24.04.2014).
  • M.7145 – Veolia Environnement / Dalkia International (simplified review) (07.05.2014).
  • M.7149 – La Banque Postale / SNCF / SOFIAP (30.04.2014) (simplified procedure).
  • M.7161 – DCC Energy / Qstar Försäljning / Qstar / Card Network Solutions (24.04.2014).
  • M.7162 – Ineos / Sasol Solvents Business (05.05.2014).
  • M.7178 – Suntory / Beam (16.04.2014).
  • M.7179 – Silver Lake / WME / IMG (simplified procedure) (23.04.2014).
  • M.7197 – AMP / PSP / Arcus / Alpha Trains (15.04.2014).
  • M.7218 – Brookfield / APMTNA / APMT Elizabeth (30.04.2014).
  • M.7203 – Unibail–Rodamco / CPPIB / CentrO (06.05.2014).
  • M.7204 – Rothesay Life / MetLife Assurance (IP/14/500) (29.04.2014).
  • M.7206 – Bain Capital / Anchorage Capital / Ideal Standard (30.04.2014) (simplified procedure).
  • M.7211 – AXA / PSPIB / real estate portfolio in Milan (06.05.2014) (simplified procedure).
  • M.7227 – Temasek / Olam International (02.05.2014) (simplified procedure).

Phase II Investigations

Commission initiates Phase II investigation into Cemex / Holcim Spanish assets (M.7054). On 23 April 2014, the Commission announced that it has opened a Phase II investigation into the acquisition by Cemex of the Spanish operations of Holcim (IP/14/472). The Commission has concerns that the proposed transaction may reduce competition in the market for grey cement in certain areas of Spain. In a linked transaction, Holcim intends to acquire certain assets of Cemex located in western Germany. The Commission opened an in-depth investigation into that transaction in October 2013 which is continuing (see IP/13/986).

Commission opens Phase II investigation into Liberty Global / Ziggo acquisition (M.7000). On 8 May 2014, the Commission announced an in-depth investigation to assess whether the proposed acquisition of Ziggo by Liberty Global may affect competition in the Dutch markets for (i) the acquisition of individual Dutch language audio visual content, (ii) the acquisition of TV channels, (iii) the wholesale supply of premium pay TV film channels, and (iv) the retail provision of fixed internet access, TV and fixed telephony services (IP/14/540).

UK Mergers

Court of Appeal confirms Competition Commission prohibition of Akzo Nobel / Metlac. On 14 April 2014, the Court of Appeal dismissed an appeal by Akzo Nobel related to the 2012 Competition Commission (CC) prohibition decision of the Akzo/Metlac merger. The Court of Appeal concluded that neither the Competition Appeal Tribunal (CAT) nor the CC had erred in finding that Akzo Nobel was “carrying on business” in the UK for the purposes of section 86(1)(c) of the Enterprise Act 2002. The strategic and operational management of a business carried on in the UK was sufficient to fall within the test. The CC therefore had jurisdiction to make an enforcement order against Akzo Nobel, which is not located in the UK, prohibiting its acquisition of further shares in Metlac (Akzo Nobel N.V. v. Competition Commission & Ors [2014] EWCA Civ 482 (14 April 2014)).

CAT grants Ryanair permission to appeal Ryanair/Aer Lingus merger. On 23 April 2014, Ryanair was granted permission to appeal the ruling by the CAT upholding the CC’s prohibition of Ryanair / Aer Lingus acquisition. The CAT granted Ryanair permission to appeal on the grounds of procedural fairness (related to the CC’s failure to provide certain allegations and evidence to Ryanair) and in relation to the EU duty of sincere co-operation (Case No 1219/4/8/13).

CMA publishes Phase II issues statement on Omnicell / MTS merger. On 25 April 2014, the Competition and Markets Authority (CMA) published its issues statement on the anticipated acquisition by Omnicell, Inc / MTS Medication Technologies, Inc of SurgiChem Limited (see Omnicell / MTS merger inquiry). The statement identifies possible theories of harm.