EU MERGERS

Phase I Clearance

  • M.6922 – Triton / Logstor (MEX/13/0826) (23.08.2013).
  • M.6966 – 3i Group / Barclays Infrastructure Funds Management (simplified review) (29.08.2013)

Phase II Clearance 

Commission approves acquisition of Shell's Harburg refinery assets by Nynas AB of Sweden. The Commission has cleared the proposed acquisition of certain refinery assets of Shell Deutschland Oil GmbH by Nynas AB (M.6360). The Commission’s in-depth investigation showed that a closure of the Harburg refinery assets by Shell would be the most likely scenario but for the proposed transaction leading to higher prices for European consumers. The reduction of the number of competitors in the market would therefore have occurred anyway, and would not be caused by the acquisition itself. Furthermore, the closure of the Harburg refinery would reduce the naphthenic base and process oil production capacity in the EEA below EEA-demand which would have to be met by imports (IP/13/804).

UK ANTITRUST

Competition Appeal Tribunal extends period for seeking permission to appeal CAT ruling lifting stay in Deutsche Bahn damages action. On 27 August 2013, the Chairman of the Competition Appeal Tribunal (CAT) granted to the defendants (other than Morgan Crucible) an extension of the period for seeking permission to appeal the CAT ruling lifting the stay on the damages action related to the carbon and graphite cartel (seeVolume 1, Edition 40). The damages action before the CAT had previously been stayed pending an appeal by Morgan Crucible to the Supreme Court related to the issue of whether the claims had been brought within the limitation period. The CAT lifted the stay on 15 August 2013 in relation to the claims against the defendants other than Morgan Crucible (the Defendants). The CAT set the period for any application for permission to appeal by the Defendants at two weeks. Following an application by the Defendants, the CAT has granted a one-week extension (Order dated 27 August 2013). On 29 August 2013, the CAT published a reasoned Order giving certain case management directions (see further Case No 1173/5/7/10  Deutsche Bahn AG & Others v Morgan Crucible Company PLC & Others).

OFT to consider closure of Amazon price-parity policy investigation. On 29 August 2013, the Office of Fair Trading (OFT) welcomed Amazon's announcement that it intends to end its price-parity policy which prevents third party sellers on the Amazon.co.uk Marketplace platform from offering lower prices on other online sales channels. The OFT opened a formal investigation following numerous complaints. Amazon has stated that it will discontinue the enforcement of contractual price parity obligations in the EU and remove such provisions from its agreements with third party sellers. In light of Amazon’s announcement, the OFT has announced that it is minded to close its investigation on the grounds of administrative priority (Press Release 60/13).

UK MERGERS

Competition Commission requires Ryanair to reduce minority shareholding in Aer Lingus to five per cent. On 28 August 2013, the Competition Commission (CC) published its final report on its investigation into the completed acquisition by Ryanair of a minority interest in Aer Lingus (see Ryanair / Aer Lingus merger inquiry). The CC has confirmed its provisional findings that Ryanair's acquisition of a 29.82% shareholding in Aer Lingus has led or may be expected to lead to a substantial lessening of competition (SLC) in the markets for air passenger services between Great Britain and the Republic of Ireland. The CC has concluded that the most effective and most proportionate remedy is to require Ryanair to reduce its shareholding in Aer Lingus to five per cent (CC Press Release). Following the prohibition of Ryanair’s first public offer for Aer Lingus in October 2006, the European Commission ruled that the minority shareholding did not constitute a concentration under the EU Merger Regulation and therefore did not require its divestiture. Ryanair’s third bid to acquire the entirety of Aer Lingus was prohibited by the European Commission in February 2013 (see Volume 1, Edition 17).

Competition Commission publishes issues statement in Optimax / Ultralase merger. On 30 August 2013, the CC published its issues statement on the completed acquisition by Optimax Clinics Limited of Ultralase Limited (see Optimax / Ultralase merger inquiry). The statement identifies three possible theories of harm: unilateral effects at a local level; unilateral effects at a national level; and co-ordinated effects at a national or local level. The CC has invited responses by 16 September 2013 (CC Press Release).

UK MARKET INVESTIGATION

Competition Commission publishes provisional findings in private healthcare market investigation. On 28 August 2013, the CC published its provisional findings in its market investigation into the supply or acquisition of privately funded healthcare services in the UK (see private healthcare market investigation). The CC has identified certain structural market features and conduct features that it has provisionally concluded give rise to adverse effects on competition (AEC). Possible remedies include requiring three private hospital providers to divest hospitals in certain local areas, a prohibition on incentive schemes for consultants, a prohibition on expansion in certain local areas, measures to prevent bundling or tying, and measures to make more information publicly available for patients. The CC has invited responses by 20 September 2013 (CC Press Release).

UK REFORM

Competition Appeal Tribunal publishes response to BIS consultation on regulatory and competition appeals system. On 23 August 2013, CAT published its response to the June 2013 consultation by the UK Department for Business, Innovation & Skills (BIS) on options for streamlining the system of regulatory and competition appeals. Although the CAT has welcomed certain aspects of the proposals, the CAT disagrees with other aspects and has set out its “serious underlying concerns” (Government Consultation of 19 June 2013: Response of the Competition Appeal Tribunal).