ARTICLE 101 TFEU

ECJ rules on Austrian law related to third party access to Cartel court files. On 6 June 2013, the European Court of Justice (ECJ) handed down its judgment on the compatibility with EU law of the Austrian Federal Law of 2005 on Cartels and Other Restrictions of Competition (the Federal Law). The Federal Law prohibits third party access to court files held by the Austrian Cartel Court (the Cartel Court), absent the consent of the parties to the competition proceedings. The ECJ reference followed the refusal of the Cartel Court to grant third party access to documents relating to national cartel proceedings for lack of consent (AG General Jaaskinen handed down his opinion on 7 February 2013) (see Volume 1, Issue 14). The ECJ concluded that the principle of effectiveness under EU law precludes a law such as the Federal Law, as this does not leave any possibility for the national court to balance the interests in favour of disclosure of the information (to allow for the exercise of the right to compensation) and those in favour of protection of that information (so as not to compromise the effectiveness of leniency programmes) (as per Case C-360/09Pfleiderer AG v Bundeskartellamt) (Case C-536/11 - Bundeswettbewerbsbehörde v Donau Chemie AG, Judgment delivered on 6 June 2013).

Commission withdraws motor vehicles block exemption. On 31 May 2013, Commission Regulation 1400/2002 on the application of Article 101(3) of the Treaty on the Functioning of the European Union (TFEU) to categories of vertical agreements and concerted practices in the motor vehicle sector was withdrawn. From 1 June 2010, vertical agreements relating to the motor vehicle aftermarket (the purchase, sale, or resale of spare parts or provision of repair and maintenance services) will benefit from exemption under Article 101(3) only if they satisfy the conditions of the vertical agreements block exemption (Regulation 330/2010) and do not contain any additional hardcore restrictions listed in Regulation 461/2010.

Telefónica appeals against Commission decision on non-compete agreement with Portugal Telecom. On 1 June 2013, details of an appeal brought by Telefónica against a decision by the European Commission imposing fines on both Telefónica and Portugal Telecom for agreeing a non-compete clause in breach of Article 101 TFEU (Case AT. 39839) were published in the Official Journal (Case T-216/13 - Telefónica v Commission, Action brought on 9 April 2013) (see Volume 1, Issue 12).

CARTELS

Eni and Versalis appeal adoption of second Statement of Objections in synthetic rubber cartel. On 1 June 2013, details of appeals lodged by Eni and Versalis challenging a decision by the Commission to issue a second Statement of Objections in the synthetic rubber cartel were published in the Official Journal. The statement of objections purports to address errors identified by the General Court in setting the fine imposed in the original 2006 cartel decision. Both companies allege that the Commission lacked competence to reopen the proceedings against it with a view to the adoption of a new infringement decision (Case T-210/13 - Versalis SpA v European Commission, Action brought on 12 April 2013 and Case T-211/13 - Eni SpA v European Commission, Actions brought on 12 and 15 April 2013, respectively).

UK ANTITRUST

Competition Appeal Tribunal refuses OFT application to appeal tobacco ruling. In March 2013, the CAT retroactively extended the deadline for both Somerfield (Case No. 1197/1/1/12) and Gallaher (Case No. 1200/1/1/12) to appeal the Office of Fair Trading’s (OFT) 2010 tobacco decision (see Volume 1, Edition 21). On 6 June 2013, the OFT’s application for permission to appeal the rulings of the CAT in March 2013 (see Volume 1, Edition 26) was refused (Somerfield Stores Limited and Co-operative Group Food Limited v Office of Fair Trading and Gallaher Group Limited and Gallaher Limited v Office of Fair Trading, Ruling of 27 March 2013, [2013] CAT 5).

EU MERGERS

Phase I Clearance

  • M.6872Barry Callebaut / Petra Foods - Cocoa Ingredients Division (07.06.2013) (IP/13/504).
  • M.6883 Canada Life / Irish Life (31.05.2013) (MEX/13/0603).
  • M.6894Syral China Investment / Wilmar China New Investments Pte. Ltd. / Liaoning Jinxin Biology & Chemistry Co. Ltd. (31.05.2013) (simplified review) (MEX/13/0604) (MEX/13/0604).
  • M.68953G Special Situations Fund III / Berkshire Hathaway / H J Heinz Company (31.05.2013) (MEX/13/0603).
  • M.6899Lion Capital / Avedon Capital Partners / Ad van Geloven Holding (03.06.2013) (simplified review) (MEX/13/0604).
  • M.6908Randstad / USG Assets (06.06.2013).
  • M.6909Qatar Investment Authority / Kingdom Holding Company / FRHI Holdings Limited (simplified review) (MEX/13/0607).
  • M.6915OJSC Unimilk Company / NDL International / JV (06.2013) (simplified review) (MEX/13/0604).
  • M.6926Nordic Capital VIII Limited / Unicorn ApS (04.06.2013) (simplified review) (MEX/13/0604).

UK MERGERS

Competition Commission bars Eurotunnel from operating Dover ferry services. On 6 June 2013, the Competition Commission published its Final Report in its Eurotunnel / SeaFrance merger inquiry. Eurotunnel will be prohibited from operating ferry services at the port of Dover for two years with any vessel, and for ten years with the Berlioz and the Rodin. As an alternative to the ten-year prohibition, Eurotunnel may sell the Berlioz and the Rodin in order to address the CC’s competition concerns, but it would still be prohibited from operating ferry services with any vessel at the port of Dover for a period of two years (see Volume 1, Edition 21).

Competition Commission publishes Provisional Findings Report in Ryanair / Aer Lingus merger inquiry. On 3 June 2013, the Competition Commission published its Provisional Findings Report and Appendices and Glossary in the Ryanair / Aer Lingus merger inquiry (see Volume 1, Edition 30).

ESPEECHES / PUBLICATIONS

Speech by Director-General for Competition, Alexander Italianer: ‘European Commission Romania’s Competition Council and its contribution to EU competition policy’ (30 May 2013).

EU ECONOMIC SANCTIONS UPDATES

Syria

Council Implementing Regulation (EU) No 363/2013 amending Annex II to Council Regulation (EU) No 36/2012 implemented with effect from 23 April 2013. The amendments take the form of amending the identifying information for 182 entries in Annex II.