EU Antitrust

Commission rejects complaint about alleged refusal to supply Irish whiskey. On 10 February 2015, the European Commission published its decision to reject a complaint by Protégé International Limited alleging a breach of Article 101 of the TFEU in connection with a refusal to supply Irish whiskey. The complainant alleged that three Irish whiskey producers had either concluded an agreement or entered into concerted practices not to supply it with whiskey, in order to exclude it from the market. In exercising its discretion to set priorities, the  Commission concluded that there were insufficient grounds to conduct any further investigation into this matter. The Commission also concluded that there was a limited likelihood of establishing the existence of an infringement of Article 101 of the TFEU in this case. In  particular, there was no evidence of an agreement or concerted practice between the three companies. The Commission also considered that the complaint appeared to have limited  impact on the functioning of the internal market and that the Irish courts and authorities would  be well­placed to handle the matters relating to the complaint.

Advocate General’s opinion on Deutsche Bahn appeal against unannounced inspections. On 12 February 2015, Advocate General Wahl gave his Opinion on an appeal by Deutsche Bahn against a General Court judgment that upheld decisions of the European Commission authorising three unannounced inspections at Deutsche Bahn’s premises.  According to AG Wahl, Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) does not require prior judicial authorisation of inspections of business premises by the Commission. An adequate level of protection is ensured by the judicial review that can be carried out by the European Courts after the inspection. However, AG Wahl concluded that the first unannounced inspection was an illegal search to the extent that Commission staff were expressly or implicitly solicited to locate documents falling outside the scope of the first inspection decision. The Advocate General concluded that the second and third inspection decisions should be annulled, as documents obtained during the first inspection, in breach of Regulation 1/2003, had been used by the Commission as a basis for their adoption (Case C­585/13 P – Deutsche Bahn and others v European Commission (ECLI:EU:C:2014:2365), Opinion of Advocate General Wahl, 12 February 2015).

EU Mergers

Phase I Mergers

M.7457 – CVC Capital Partners / Paroc of Finland (13/02/2015)

M.7481 – Brookfield Infrastructure Fund GP II LLC / TDF S.A.S (13/02/2015)  M.7485 – BFM Business Fleet Management AG / Swisscom AG / Sixt SE / Managed Mobility AG (Joint Venture) (12/02/2015)

Phase II Mergers

M.7429 – Siemens / Dresser­Rand (13/02/2015)

M.7337 – IMS Health / Cegedim Business (13/02/2015)

State Aid

Commission prolongs for third time Portuguese Guarantee Scheme on European Investment Bank lending. On 10 February 2015, the European Commission announced that it has decided to prolong until 30 June 2015 the Portuguese Guarantee Scheme on European Investment Bank (EIB) lending. The scheme, which was originally approved in June 2013 and has been prolonged twice previously, covers state guarantees to banks that guarantee EIB  loans for companies in Portugal. The Commission has decided that the further prolongation of the scheme is in line with its guidelines on state aid to banks during the crisis because it is well targeted, proportionate and limited in time and scope. The prolonged scheme will allow the continuation of funding provided by the EIB to the real economy and prevent the disruption of  the credit granted by the EIB through the banks participating in the scheme.

ECJ rules that France failed to recover unlawful state aid granted to fruit and vegetable sector. On 12 February 2015, the European Court of Justice (ECJ) ruled that France has failed to comply with a 2009 European Commission decision which found that France had granted unlawful state aid to the French fruit and vegetable sector by means of yearly “contingency plans” between 1991­2002. The ECJ found that France had neither taken all the measures necessary to recover the unlawful aid, nor had it complied with its obligations to inform the Commission of the steps it was taking towards obtaining recovery by the deadline set in the Commission’s decision (Case C­37/14 – Commission v France, judgment of 12 February 2015).

Commission approves aid to alleviate social costs of closing uncompetitive coal mine in the Czech Republic. On 12 February 2015, the European Commission announced that it has decided to approve state aid to alleviate the social costs of closing an uncompetitive coal mine in the Czech Republic. The Commission concluded that the Czech support measures, which will provide support to those working in the coal mine, is in line with Council Decision 2010/787 on state aid to facilitate the closure of uncompetitive coal mines.

UK Mergers

CMA decision on acquisition by Roanza of Enza and Robert Smith Group. On 10 February 2015, the Competition and Markets Authority (CMA) published the full text of its decision on the completed acquisition by Roanza Group Limited of Enza Limited and Robert Smith Group Limited. Both merging parties operate franchise dealerships for Mercedes Benz trucks and vans. The CMA found, however, that the parties were not close competitors and that the merger entity would continue to face sufficient constraints from other competitors.

Court of Appeal dismisses Ryanair’s appeal against CAT ruling upholding Competition Commission decision on minority stake in Aer Lingus. On 12 February 2015, the Court of Appeal dismissed the appeal by Ryanair against a judgment of the Competition Appeal Tribunal (CAT) in relation to Ryanair’s minority stake in Aer Lingus. The CAT had dismissed, in its  entirety, Ryanair’s application for review of the Competition Commission’s final report on the completed acquisition by Ryanair of a minority stake in Aer Lingus. The Court of Appeal first held that the CAT had not erred in concluding that the non­disclosure by the Competition Commission of the names of other airlines that provided certain evidence to it did not make the Competition Commission’s consultation process procedurally unfair to Ryanair. The Court of Appeal also held that the CAT had not erred in holding that the Competition Commission’s divestment order meets the legitimate aim of the Enterprise Act 2002. Ryanair has already announced that it intends to seek permission to appeal this ruling to the UK’s Supreme Court (Ryanair Holdings Plc v The Competition And Markets Authority & Anor [2015] EWCA Civ 83, judgment 12 February 2015).

UK Competition

Ofgem announces Chapter I/Article 101 investigation in support service for the energy industry. On 9 February 2015, Ofgem announced that it has opened an investigation into alleged breaches of the Chapter I prohibition of the Competition Act 1998 and/or Article 101 of the TFEU by two or more companies providing a supporting service for the energy industry. The companies have not been named and Ofgem has provided no further information.

Speeches & Publications

Commission publishes state aid brief on return to viability of aided banks. On 11 February 2015, the European Commission published a “Competition state aid brief” on state aid provided to European banks and the banks’ return to viability.

European Parliament sets up special committee on tax rulings. On 12 February 2015, the European Parliament announced that it has set up a special parliamentary committee to look  into EU member state’s “tax rulings and other measures similar in nature or effect”. The Committee will look into tax ruling practices as far back as 1 January 1991. It will also review the way the European Commission treats state aid in member states and the extent to which member states are transparent about their tax rulings. It will also seek to ascertain the negative impact of aggressive tax planning on public finances and will come up with recommendations for the future. The committee will have 45 members and is established for an initial period of six months. It has been set up following the European Commission’s announcement of investigations into tax rulings for multi­national companies in Luxembourg, Ireland, Belgium and the Netherlands.