EU ANTITRUST

Advocate General opines on access to documents in gas insulated switchgear cartel. On 3 October 2013, Advocate General Cruz Villalon handed down his opinion on the appeal brought by the European Commission (Commission) against the judgment of the General Court (Case T 344/08 - EnBW Energie Baden-Württemberg AG v Commission, judgment of 22 May 2012) which annulled the Commission’s decision to refuse access to the case file in the gas insulated switchgear cartel (Case No 38899) based on Regulation 1049/2001. Under Article 4(2) or Regulation 1049/2001, the EC institutions shall refuse access to a document where disclosure would undermine the protection of, inter alia, commercial interests, whereas under the second subparagraph of Article 4(3), access shall be refused if disclosure of the document would seriously undermine the institution’s decision-making process. According to the Advocate General, the European Court of Justice (ECJ) should uphold the Commission pleas alleging misinterpretation of Article 4(2) and (3) of Regulation 1049/2001 and, accordingly, the ECJ should set aside the General Court’s judgment annulling the Commission’s decision refusing access to the case file (Case C 365/12 P - Commission v EnBW Energie Baden-Württemberg,Advocate General’s opinion, 3 October 2013). 

EU MERGERS

Phase I Clearances

  • M.6994 – Arrow / CSS (02.10.2013) (simplified merger review).
  • M.7015 – Bain Capital / Altor Fund III / EWOS (01.10.2013). 
  • M.7026 – Amvest / NPM Capital / DGH Participaties / Jopli Participaties / Erve Hulshorts Participaties / DLH (02.10.2013) (simplified merger review).
  • M.7032 – Koninklijke Reesink / Pon European material handling business (02.10.2013).

Acquisition of Morpol by Marine Harvest approved subject to conditions (M.6850). On 30 September 2013, the Commission approved the proposed acquisition of Morpol, the largest salmon processor in the EEA, by Marine Harvest, the leading salmon farmer in the EEA. The clearance is conditional upon the divestment of the largest part of Morpol’s salmon farming operations in Scotland. The Commission had concerns that the transaction, as originally notified, would have significantly reduced competition in the market for farming and primary processing of Scottish salmon. The commitments offered by the merging companies address these concerns (IP/13/896, 30/09/2013).

Acquisition of Pride Foods by Refresco approved subject to conditions (M.6924). On 4 October 2013, the Commission approved the proposed acquisition of fruit juice bottler Pride Foods (trading as Gerber Emig) by Refresco. The clearance is conditional upon the divestment of a Gerber Emig production and bottling plant in Germany. The commitments offered by Refresco address the Commission’s concerns. 

UK MARKET INVESTIGATIONS

CAT rules that Competition Commission disclosure room breached duty to consult. On 2 October 2013, the Competition Appeal Tribunal (CAT) handed down its ruling in connection with applications by BMI Healthcare Limited, HCA International Limited and Spire Healthcare Group for review the decision of the CC to allow access to a disclosure room containing certain confidential information relating to the CC’s private healthcare market investigation (see Private healthcare market investigation). The CAT concluded that the terms set out in the undertakings and rules governing access were not fit for the purpose of allowing a proper and informed response to the CC’s provisional findings. In particular, the rules did not allow the parties’ advisers to take notes and the time allowed was unreasonably short. Accordingly, the CC’s decision was in breach of the statutory duty in section 169 of the Enterprise Act 2002 and in breach of the rules of natural justice (Case No 1218/6/8/13).

UK MERGERS

OFT refers Ericsson / Red Bee acquisition to Competition Commission. On 30 September 2013, the Office of Fair Trading (OFT) referred the proposed acquisition by Telefonaktiebolaget LM Ericsson (Ericsson) of Red Bee Media Limited to the Competition Commission (CC) (ME/6110/13). The OFT found that the parties compete closely in the supply of linear playout services to TV broadcasters in the UK. The OFT considered behavioural remedies proposed by the parties insufficient in terms of scope and certainty of outcome (OFT Press Release 68/12).

UK REFORMS

UK launches Competition and Markets Authority and consults on vision, values and strategy. On 1 October 2013, the Competition and Markets Authority (CMA) launched in shadow form before going live in April 2014 (CMA Press Release). The Competition and Markets Authority will bring together the Competition Commission (CC) with the competition and certain consumer functions of the Office of Fair Trading (OFT). The CMA has invited comments on its proposed vision, values and strategy by 12 November 2013. 

Government gives the Financial Conduct Authority concurrent competition powers. At the request of the FCA, the UK government has introduced an amendment to the Financial Services (Banking Reform) Bill to give the FCA competition law powers under Part 1 of the Competition Act 1998 and Part 4 of the Enterprise Act 2002. The FCA requested such powers to support its statutory competition objective. The government considers that this will further strengthen the ability of the FCA to ensure competitive banking markets (HM Treasury Briefing for Peers).

SPEECHES / PUBLICATIONS

Speech by Vice President of DG Commission, Joaquín Almunia. The Google antitrust case: what is at stake? (SPEECH/13/768, 01/10/2013).

Speech by Vice President of DG Commission, Joaquín Almunia. The Google antitrust case: what is at stake? Competition policy in a larger EU (SPEECH/13/775, 03/10/2013).

Case AT.39748 — Automotive wire harnesses. Summary of Commission Decision of 10 July 2013 published (OJ C 283/5 28.09.2013).

Ofgem guidance on whistleblowing. On 30 September 2013, the Office of Gas and Electricity Markets (Ofgem) published guidance on whistleblowing (Guidance on Whistleblowing to Ofgem).

UK Competition Appeal Tribunal appoints new President. The Lord Chancellor has appointed The Honourable Mr Justice Roth to be President of the Competition Appeal Tribunal with effect from 5 November 2013 (CAT announcement).

Speech by Director General of DG Competition, Alexander Italianer. Competitor agreements under EU competition law (40th Annual Conference on International Antitrust Law and Policy, Fordham Competition Law Institute, New York, 26 September 2013).

SANCTIONS

Al-Qaida

Commission Implementing Regulation (EU) No 943/2013 (OJ L 261/3, 03.10.2013) amending Annex I to Council Regulation (EC) No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with the Al-Qaida network. The Implementing Regulation removes a designated person from Annex I.