Dawn raids in the rail passenger transport sector
On 28 June 2016, the Commission carried out dawn raids in the sector of rail passenger transport in several Member States. The Commission has concerns that the companies concerned may have entered into anti-competitive agreements aiming to shut out competing rail passenger transport operators from the market, in breach of Article 101 of the Treaty on the Functioning of the European Union.
Google’s comparison shopping and advertising relatedpractices
The Commission’s supplementary Statement of Objections issued on 14 July 2016 outlines a broad range of additional evidence and data that reinforces the Commission’s preliminary conclusion that Google has abused its dominant position by favouring its own comparison shopping service in its general search results.
Separately, the Commission has also informed Google in a Statement of Objections of its preliminary view that Google has abused its dominant position by artificially restricting the possibility of third party websites to display search advertisements from Google’s competitors.
A large proportion of Google’s revenues from search advertising intermediation stems from its agreements with a limited number of large third parties, so called “Direct Partners”. The Commission has concerns that in these agreements with Direct Partners, Google has breached EU anti-trust rules by imposing the following conditions:
- Exclusivity: requiring third parties not to source search ads from Google’s competitors.
- Premium placement of a minimum number of Google search ads: requiring third parties to take a minimum number of search ads from Google and reserve the most prominent space on their search results pages to Google search ads. In addition, competing search ads cannot be placed above or next to Google search ads.
- Right to authorise competing ads: requiring third parties to obtain Google’s approval before making any change to the display of competing search ads.
Commission investigates AB InBev’s practices on Belgian beer market
The Commission has launched an investigation to assess whether Anheuser-Busch InBev SA (AB InBev) has abused its dominant position on the Belgian beer market by hindering imports of its beer from neighbouring countries. The Commission’s preliminary view is that AB InBev may be pursuing a deliberate strategy to restrict ‘parallel trade’ of its beer from less expensive countries, such as the Netherlands and France, to the more expensive Belgian market.
In particular, the Commission will investigate certain potentially anti-competitive practices such as:
- possibly changing the packaging of beer cans/bottles to make it harder to sell them in other countries
- possibly limiting “non-Belgian” retailers access to rebates and key products to prevent them from bringing less expensive beer products to Belgium
Commission accepts commitments by container liner companies on price transparency
Fourteen container liner shipping companies (“Carriers”) have regularly announced their intended future increases of freight prices on their websites, via the press, or in other ways. These price announcements do not indicate the fixed final price for the service concerned, but only the amount of the increase in US dollars per transported container unit, the affected trade route and the planned date of implementation. They generally concern sizeable increases of several hundred US Dollars per transported container unit. These price announcements are made typically three to five weeks before their intended implementation date, and during that time some or all of the other Carriers announce similar intended rate increases for the same or similar route and same or similar implementation dates. Carriers are not bound by the announced increases and some carriers have postponed or modified announced general rate increases, possibly aligning them with those announced by other Carriers.
The Commission had concerns that these price announcements do not provide full information on new prices to customers but merely allow Carriers to be aware of each other’s pricing intentions and may make it possible for them to coordinate their behaviour.
The commitments offered by the Carriers, and accepted, are as follows:
- The Carriers will stop publishing and communicating these price announcements.
- In order for any future price announcements to be useful for customers, the carriers will announce figures that include at least the five main elements of the total price (base rate, bunker charges, security charges, terminal handling charges and peak season charges if applicable).
- Price announcements will be binding on the Carriers as maximum prices for the announced period of validity.
- Price announcements will not be made more than 31 days before their entry into force.
- The commitments will not apply to: (i) existing rate agreements in force; or (ii) communications tailored to specific identified purchasers.
Commission fines truck producers €2.93 billion for participating in a cartel
On 19 July 2016, the Commission found that MAN, Volvo/Renault, Daimler, Iveco and DAF had colluded for fourteen years on truck pricing and on passing on the costs of compliance with stricter emission rules. This decision relates specifically to the market for the manufacturing of medium and heavy trucks. The infringement covered the entire EEA.
Proceedings were also opened with regard to Scania, who is not covered by this settlement decision and therefore the investigation will continue under the standard cartel procedure for Scania.
The Minister for Jobs, Enterprise and Innovation recently acknowledged that some provisions of the Damages Directive (Directive 2014/104/EU on certain rules governing actions for damages under national law for infringements of the competition law provisions of Member States and of the European Union) already exist in national legislation or in existing court rules. The provisions of the Damages Directive that need to be transposed are being considered during the drafting process which is currently underway and will be addressed in transposing legislation, and/or by amending court rules. They will be addressed by the deadline of 27 December 2016. Practice Note
What is TTIP?
The Transatlantic Trade and Investment Partnership (“TTIP”) is the proposed trade and investment agreement which the EU is negotiating with the US. It will be the world’s largest bilateral trade and investment deal. Negotiations began in 2013 and the fourteenth round of negotiations took place in Brussels from 11 – 15 July 2016. The final agreement will have up to 30 chapters, including chapters on: food safety and animal and plant health; chemicals; cosmetics; engineering products; information and communication technologies; medical devices; pesticides; pharmaceuticals; textiles; and vehicles.
This transaction involved the proposed joint venture between Heineken Ireland Limited and Comans Beverages Limited.
The CCPC noted that there was a horizontal overlap between the parties’ activities in the State with respect to the wholesale supply of packaged alcoholic and non-alcoholic beverages in the State.
Although alcoholic and non-alcoholic beverages are unlikely to be substitutable from the perspective of the end consumer, wholesalers typically supply a full range of alcoholic and nonalcoholic beverages to on-trade and off-trade customers. The Commission therefore considered it reasonable to include alcoholic and non-alcoholic beverages in the same wholesale product market.
In order to determine whether the proposed transaction might result in a substantial lessening of competition, the CCPC assessed its impact on competition in: (i) Co. Cork; (ii) Co. Limerick; (iii) Co. Galway; (iv) Co. Donegal; and (v) the State.
There were a number of undertakings currently active in the wholesale supply of packaged alcoholic and non-alcoholic beverages in: (i) Co. Cork; (ii) Co. Limerick; (iii) Co. Galway; and (iv) Co. Donegal which will act as a competitive constraint on the joint venture post-transaction.
The CCPC noted that the parties were not particularly close competitors since they operated, to a large extent, in different parts of the State.
The joint venture will also face competition from two wholesalers of packaged alcoholic and non-alcoholic beverages who operate at a national level, one being the largest wholesaler of alcoholic and non-alcoholic beverages in the State, holding an estimated market share of approximately 30-35%. Following the proposed transaction, the joint venture’s combined market share in the State will be approximately 25-30%.
Two theories of competitive harm were assessed by the CCPC: input foreclosure and customer foreclosure.