Merger control: HeidelbergCement appeals Commission decision to open Phase II investigation into the acquisition of Cemex Croatia jointly with Schwenk

On 20 February 2017, the Official Journal published details of an appeal by HeidelbergCement AG ("HeidelbergCement") against a Commission decision from 10 October 2016 that initiated an in-depth Phase II investigation into the joint acquisition of Cemex Croatia by HeidelbergCement and Schwenk. HeidelbergCement and Schwenk are both German construction material producers. Together they jointly control Duna Dráva Cement ("DDC"), a Hungarian company that is the largest cement importer in Croatia. Cemex Croatia, the largest cement producer in Croatia, is a subsidiary of the Cemex Group, also a global construction material supplier. Schwenk has also appealed the decision, but its grounds of appeal remain unpublished.

HeidelbergCement and Schwenk plan to acquire, via DDC, assets in Croatia and Hungary that currently belong to Cemex. HeidelbergCement claims that the Commission committed a manifest error of assessment by considering it and Schwenk, rather than DDC, a full-function joint venture in which HeidelbergCement and Schwenk Zement each hold respectively a controlling interest of 50%, as "undertakings concerned" and as a result concluded that the transaction has a "Union dimension" which grant the Commission jurisdiction to review the transaction. HeidelbergCement submits in particular that the Commission erred in relying on, and applying in this case, paragraph 147 of the Consolidated Jurisdictional Notice, which states that when a joint venture can be regarded as a mere vehicle for an acquisition by the parent companies, the parent companies can be considered to be the undertakings concerned, rather than the joint venture.

Source: Case T-902/16 HeidelbergCement v Commission, Official Journal C 053/49, 20 February 2017

Competition: CJEU rejects appeals in the candle wax cartel

On 16 February, the Court of Justice of the European Union ("CJEU") rejected three appeals by Hansen & Rosenthal KG ("Hansen & Rosenthal"), H&R Wax Company Vertrieb GmbH ("H&R Wax Company"), Tudapetrol Mineralölerzeugnisse Nils Hansen KG ("Tudapetrol") and HR & ChemPharm GmbH ("ChemPharm") (together, "the applicants") in the candle wax cartel.

In 2008, the Commission fined the applicants for their involvement in a cartel fixing prices of slack wax, which is a raw material used in candle wax. The applicants appealed the decision to the General Court ("GC"). In December 2014, the GC rejected the applicants' appeals. The applicants appealed the GC's findings to the CJEU, which has now given its judgments.

In their appeals, the applicants argued that the GC erred by finding that ChemPharm and Tudapetrol constituted a single entity. They also claimed that the GC wrongly concluded that ChemPharm's involvement in the infringement was proven because one of the company's employees (who also held a position at H&R Wax Company) had attended meetings at which prices were discussed. The CJEU dismissed these arguments, stating that the GC had not concluded that ChemPharm and Tudapetrol constituted a single entity but constituted two separate and independent companies. As concerns the employee with double positions, the CJEU stated that the same natural person can act in the interest of more than one cartel member at the same time.

The CJEU also dismissed the rest of the applicant's arguments concerning, inter alia, the proportionality of the fines imposed, the GC's interpretation of the evidence, and the obligation to state reason.

Sources: Case C-90/15 P Hansen & Rosenthal and H&R Wax Company Vertrieb v Commission, Judgment of the Court of Justice of the European Union, 16 February 2017 (in French), Case C-94/15 P Tudapetrol Mineralölerzeugnisse Nils Hansen v Commission, Judgment of the Court of Justice of the European Union, 16 February 2017 (in French) and Case C-95/15 P H&R ChemPharm v Commission, Judgment of the Court of Justice of the European Union, 16 February 2017 (in French)

Competition: Commission confirms unannounced inspections in the electricity sector in Greece

On 15 February 2017, the Commission confirmed that it has carried out unannounced inspections at the premises of companies engaged in the generation, transmission, and supply of electricity in Greece. The inspections were made because the Commission has concerns that these companies have abused their dominant position, in violation of Article 102 TFEU. Alternatively, the Commission believes that the companies have information relating to said violation. The inspections were carried out together with the Hellenic Competition Commission.

Source: Commission Press Release 15/1/2017