CARTELS

Commission publishes summary of Decision imposing fine for dawn raid e-obstruction. The Commission imposed a fine of EUR 2.5 million on Energetický a prumyslový and EP Investment Advisors for obstructing an inspection carried out by Commission officials in March 2012. Pursuant to Article 23(1)(c) of EC Regulation 1/2003, the Commission may impose a fine of up to 1 percent of a company’s total turnover if the company, intentionally or negligently, produces incomplete books or other records during an inspection or refuses to submit to an inspection. This is the first time that the Commission has fined a company for obstruction related to e-mail accounts (COMP/39.793EPH and others).

Commission sends Statement of Objections to Microsoft alleging non-compliance with browser choice commitments. This week, the Commission informed Microsoft of its preliminary view that Microsoft has failed to comply with legally binding commitments entered into in 2009 (see IP/09/1941). The SO sets out the Commission’s concern that Microsoft has failed to offer users a choice screen enabling them to easily select their preferred web browser (IP/12/1149, 24.10.2012).

UK Supreme Court rules on CAT limitation period. On 24 October 2012, the Supreme Court handed down its judgment on the statutory limitation period for “follow-on” claims in the Competition Appeals Tribunal (CAT) (pursuant to Section 47A of the Competition Act 1998). Following the Commission’s Decision in the vitamins cartel in November 2001 (COMP/37.512), BCL (and others) sought to bring follow-on claims against BASF (and others) in the CAT. BASF claimed the proposed follow-on claims were time-barred. The Supreme Court held that the two-year limitation period for CAT follow-on claims commenced on the date BASF’s right of appeal against the Commission’s infringement decision expired (rejecting the appellants’ contention that the limitation period commenced on the date BASF’s right of appeal against the CFI’s judgment on the level of the fine expired) (BCL Old Co Limited and others v. BASF plc and others [2012] UKSC 45, Judgment of 24 October 2012).

AG opines on vertical agreements in the insurance industry. Further to the sanction by the Hungarian competition authorities of certain arrangements between car insurers and car dealerships as a “hardcore” cartel offence, the Hungarian Supreme Court referred the question of the application of Article 101 TFEU to the arrangements to the ECJ. On 25 October 2012, Advocate General Cruz Villanón opined that the conditions for a preliminary reference were not met, and that the reference was therefore not admissible. AG Cruz nevertheless recommended that the question of whether the (vertical) arrangements had the “object” of restricting competition (thereby incurring more significant fines) within the meaning of Article 101 TFEU would depend on proof of a (horizontal) concerted practice between the insurance companies, and could not be presumed. The AG also commented that vertical agreements are unlikely to fall within the object box of restricting competition within the meaning of Article 101 TFEU (Case C-32/11 - Allianz Hungária Biztosító Zrt., Generali-Providencia Biztosító Zrt. and others. v Gazdasági Versenyhivatal, Opinion of Advocate General Cruz Villanón, 25 October 2012 (not yet available in English)).

MERGERS

Phase I Clearance

PUBLICATIONS

Commission adopts the 2013-14 Work Programme. The Programme sets out the key initiatives that the Commission intends to deliver in 2013, including: the review of the technology transfer block exemption (TTBR), the simplification of EU merger control procedures (to bring more transactions within the ‘simplified procedure’) and the review of state aid rules and guidelines, including the General Block Exemption Regulation (GBER) ((COM(2012) 629 final and Annex).

EU Economic Sanctions Updates

No developments to report.