EU Antitrust

Further appeal against General Court judgment on heat stabilisers cartel decision. On 8 September 2014, details were published of an appeal by Faci SpA (Faci) to the European Court of Justice (ECJ) against a General Court judgment that dismissed its action to challenge the European Commission’s heat stabilisers cartel decision. Faci claims that the General Court erred in law by not examining the gravity of the infringement after November 1996 and that it failed to conduct an effective and in-depth review of the Commission’s decision (Case C-291/14 P - Faci SpA v European Commission).

Further appeals against power cables cartel decision. On 8 September 2014, details were published of appeals by VISCAS, Brugg Kabel, Furukawa Electric, Fujikura and Sumitomo Electric Industries and J-Power Systems, who were fined by the European Commission for their participation in the power cables cartel. The applicants allege that the Commission made various errors both in the assessment of the infringement of Article 101 of the Treaty on the Functioning of the European Union (TFEU), in particular as it regards the existence of a single continuous infringement and its duration, and in the fine imposed. Brugg also considers that the Commission infringed its rights of defence and the right to a fair hearing. ABB, who received full immunity under the Leniency Notice for its participation in the infringement, has also lodged an appeal, claiming that the Commission erred in its assessment of the scope of the infringement Case T- 422/14 - Viscas v Commission, Case T-441/14 - Brugg Kabel and Kabelwerke Brugg v Commission, Case T-444/14 Furukawa Electric v Commission, Case T-445/14 - ABB v Commission, Case T-450/14 - Sumitomo Electric Industries and J-Power Systems v Commission and Case T-451/14 - Fujikura v Commission.

General Court annuls Commission decision refusing MasterCard access to third party documents relating to study. On 9 September 2014, the General Court handed down its judgment on an action by MasterCard to seek the annulment of a European Commission decision that refused to grant MasterCard access to certain documents drawn up by a third party relating to a study of the costs and benefits to merchants of accepting different payment methods. The General Court has allowed MasterCard’s appeal and annulled the Commission’s decision. The General Court found that the Commission had not provided sufficient evidence in its refusal decision to show how disclosure of the requested documents would seriously undermine its decision-making process. In particular, there was an inadequate basis that disclosure of the interim documents would expose its decision-making to a risk of external pressure. In addition, the Commission had not substantiated its claim that disclosure would damage the commercial interests of the third party that produced the documents (Case T-516/11- MasterCard, Inc and others v European Commission).

ECJ dismisses MasterCard appeal. On 11 September 2014, the ECJ dismissed the appeal by MasterCard and cross-appeals by Royal Bank of Scotland and Lloyds Banking Group, challenging the General Court judgment that upheld the European Commission’s 2007 decision finding that MasterCard’s EEA fall-back multilateral interchange fees (MIF) breached Article 101(1) of the TFEU. The ECJ held that the General Court had been correct to find that, despite a structural change, MasterCard’s decisions setting the MIF were decisions of an association of undertakings due to the commonality of interests between MasterCard (and its shareholders) and the member banks. The ECJ also found that the General Court had applied the correct legal test in examining whether the MIF were ancillary to the MasterCard system. The MIF was not objectively necessary as the MasterCard system was still capable of functioning without it. Although the ECJ found that the General Court had erred in assessing the counterfactual hypothesis used for the purposes of analysing the restrictive effects of the MIF, it did not affect the operative part of the judgment as this was well-founded on other grounds. The ECJ, therefore, upheld the General Court's analysis of the restrictive effects of the MIF, as well as its consideration of the application of Article 101(3) (Case C-382/12P - MasterCard and Others v European Commission).

ECJ sets aside General Court judgment on object restrictions in Groupement des Cartes Bancaires appeal. On 11 September 2014, the ECJ handed down its judgment on the appeal by Groupement des Cartes Bancaires (GCB) against a General Court judgment that upheld a European Commission decision finding that GCB’s tariffs breached Article 101(1) of the TFEU. The ECJ found that the General Court was wrong to conclude that the pricing measures that GCB had adopted in relation to its payments card system had the object of restricting competition. The ECJ concluded that the General Court erred in law by not referring fully to the settled case law and by failing to have regard to the fact that there must be a finding that the co- ordination reveals in itself a sufficient degree of harm to competition. The ECJ also concluded that the General Court erred in finding that the concept of restriction by object must not be interpreted restrictively. The ECJ considered that the General Court had failed to observe the standard of review required under the case law. As a result, the ECJ has upheld GCB’s appeal and set aside the General Court’s judgment. The ECJ has referred the case back to the General Court (Case C-67/13, Groupement des cartes bancaires v European Commission).

EU Mergers

Phase I Mergers

  • M.7268 - CSAV / HGV / KÜHNE MARITIME / HAPAG-LLOYD AG (11.09.2014)
  • M.7288 – Viacom / Channel 5 Broadcasting (10.09.2014)
  • M.7316 - Det Norske Oljeselskap ASA / Marathon Oil Norge AS (10.09.2014)
  • M.7327 - Aéroports de Paris Management / Bouygues Bâtiment International / International Finance / Corporation / Marguerite Fund / TAV Airports Holding / ZAIC (09.09.2014)
  • M.7332 – BSkyB / Sky Deutschland / Sky Italia (11.09.2014)

Phase II Mergers

Commission conditionally approves acquisition by Hunstman of several of Rockwood's chemical businesses. On 10 September 2014, the European Commission announced that it has decided, under Article 8(2) of the EU Merger Regulation, to grant conditional approval to the acquisition of several chemical businesses currently owned by Rockwood by Huntsman. The Commission found that the parties are the two leading suppliers of titanium dioxide for printing ink applications. The transaction would have led to the creation of a dominant position in the EEA. The Commission was concerned that the merged entity would, therefore, be able to increase prices for EEA customers. To address these concerns, Hunstman has agreed to divest, to an up-front purchaser, its global TR52 business (being the business which produces Huntsman's main titanium dioxide grade used for printing ink applications). This will remove the overlap between the parties' activities in this area (M.7061).

State Aid

Commission approves investment aid to Hungarian tyre producer. On 8 September 2014, the European Commission announced that it has approved the grant by Hungary of regional investment aid totalling EUR95.7 million to Apollo Tyres (Hungary) Kft. for the construction of a tyre plant in Gyöngyöshalász, Northern Hungary. The Commission found that the aid favours regional development while any distortions of competition are limited.

General Court partially annuls Commission decision to open in-depth investigation into aid to Lubeck airport. On 9 September 2014, the General Court handed down its judgment on an appeal by Hansestadt Lübeck (City of Lübeck) against a European Commission decision to initiate the formal investigation procedure under Article 108(2) of the TFEU regarding state aid allegedly granted to the airport of Lübeck. The City of Lübeck asked the General Court to annul the decision as regards the Commission's investigation into 2006 Regulations on airport charges. The General Court ruled that the mere fact that the 2006 Regulations only apply to airlines using the Lübeck airport was not a relevant criterion for considering whether they were selective. The fact that they only apply to airlines using the airport at Lübeck was part of the essence of the German legal regime for airport charges, under which each airport operator develops the fee structure applicable to its own airport. As it was also undisputed that all airlines using the airport could benefit from the tariff provisions of the Regulations, the General Court concluded that the Commission had erred in taking the view that the 2006 Regulations were selective. The General Court, therefore, annulled the Commission’s decision to open an in-depth investigation under Article 108(2) in so far as it concerned the Regulations. The Commission’s investigation into other aspects of the financing of Lübeck airport continues (Case T-461/12 - Hansestadt Lübeck).

General Court annuls Commission decision on aid to Greek casinos. On 11 September 2014, the General Court handed down its judgment on an appeal by Greece against a European Commission decision finding that Greece had granted unlawful state aid to the publicly-owned Regency Casino Mont Parnès, Regency Casino Thessaloniki and Corfu Casino. Under Greek tax law, State-owned casinos were allowed to charge a reduced admission price compared to privately-owned casinos. Both types of casino were required to pay a levy of 80% of the admission price to the State. The General Court found that the Commission had failed to establish that this system conferred an advantage on the publicly-owned casinos, both paying the same percentage rate. The Commission had, therefore, not established the existence of state aid within the meaning of Article 107(1) of the TFEU and its decision should be annulled in its entirety (Case T-425/11 - Greece v Commission).

UK Antitrust

CMA accepts commitments from Epyx to address concerns relating to platform services for the automotive sector. On 9 September 2014, the Competition and Markets Authority (CMA) announced that it has decided, under section 31A of the Competition Act 1998, to accept binding commitments from Epyx Limited (Epyx) and its parent company FleetCor Technologies, Inc to address competition concerns regarding Epyx’s conduct in the market for the supply of service, maintenance and repair platforms in the UK. The final commitments have only been modified slightly from the second version published for consultation in June 2014. The commitments remove certain provisions from Epyx’s contracts with demand side and supply side customers that the CMA considered had the potential to restrict competition by raising barriers to entry and foreclosing competitors’ access to customers. The CMA’s provisional view was that this could constitute an abuse of dominance by Epyx. The CMA has concluded that the final commitments address its competition concerns and that it is appropriate to accept the final commitments in this case. It considers that the commitments create a real possibility for customers to obtain SMR platform services from parties other than Epyx and for credible competitors to enter the market.

UK Mergers

Phase I Mergers

Speeches & Publications

Advocate General opinion on preliminary reference relating to rights of appeal under Framework Directive. On 9 September 2014, Advocate General Maciej Szpunar handed his opinion on a preliminary reference from the Austrian Administrative Court on the interpretation of Article 4(1) of Directive 2002/21, which provides for rights of appeal against decisions of national regulatory authorities, in the context of the transfer of rights to use frequencies under Directive 2002/20. The Advocate General considers that Article 4(1) must be interpreted as meaning that an undertaking in competition with the parties to a transfer of rights to use frequencies has a right of appeal against the decision of a regulatory authority seeking the approval of such a transaction, where it may substantially affect its position in the market (Case C - 282/13 -T-Mobile Austria GmbH v Telekom-Control-Kommission).

Next Competition Commissioner named. On 10 September 2014, President-elect of the European Commission Jean-Claude Juncker announced the portfolio responsibilities for the next European Commission. He has named Margrethe Vestager, formerly Danish Minister of Economic Affairs, as Competition Commissioner-designate. The “mission letter” sent by the President-elect to the Competition Commissioner-designate has also been published. This sets out how it is expected that the new Commission will together and also sets out high level policy priorities.