ECJ rejects Viega’s appeal against General Court judgment in the Fittings cartel. On 14 March 2013, the European Court of Justice (ECJ) ruled on the appeal brought by Viega for the dismissal of the General Court judgment upholding the Commission Decision in the Fittings cartel (COMP/38121). The ECJ dismissed Viega’s appeal in its entirety (Case C-276/11, Viega v Commission, Judgment of 14 March 2013) (available in the French and German language).
ECJ preliminary ruling requested on ability to claim damages indirectly caused by a cartel. On 9 March 2013, details of a request for a preliminary ruling from the European Court of Justice by the Austrian Supreme Court were published in the Official Journal (OJ). The Austrian court questioned whether a damages action may be brought against a cartel participant for losses caused by non-participants benefiting from umbrella pricing. The question referred is as follows:
“Is Article 101 TFEU (Article 81 EC, Article 85 of the EC Treaty) to be interpreted as meaning that any person may claim from members of a cartel damages also for the loss which he has been caused by a person not party to the cartel who, benefiting from the protection of the increased market prices, raises his own prices for his products more than he would have done without the cartel (umbrella pricing), so that the principle of effectiveness laid down by the Court of Justice of the European Union requires grant of a claim under national law?”
(Case C-557/12, KONE AG, Otis GmbH, Schindler Aufzüge und Fahrtreppen GmbH, Schindler Liegenschaftsverwaltung GmbH, ThyssenKrupp Aufzüge GmbH v ÖBB - Infrastruktur AG, Request lodged on 3 December 2012)
General Court delivers judgments on appeals by Del Monte and Dole in the Bananas cartel. On 14 March 2013, the General Court delivered two judgments on applications for the annulment of the European Commission (Commission) Decision on the Bananas cartel (COMP/39188). By its 2008 Decision, the Commission found that banana importers Chiquita, Dole, and Del Monte/Weichert had participated in a cartel between 2000 and 2002. Dole and Del Monte/Weichert were fined €45.6 million and €14.7 million respectively, while Chiquita received full immunity. The ECJ partially reduced the fine on Dole to €8.82 million on the basis that the Commission should have given greater credit for its co-operation and for its lesser involvement in the infringement (Case T–587/08, Fresh Del Monte Produce, Inc. v Commission, Judgment of 14 March 2013). The fine imposed on Dole was upheld (Case T–588/08, Dole Food Company v Commission, Judgment of 14 March 2013).
ARTICLE 101 TFEU
European Commission publishes summary of e-books commitments decision. On 13 March 2013, the European Commission (Commission) published a summary of its decision accepting binding commitments from Apple and four publishers: Hachette Livre, Harper Collins, Holtzbrinck/Macmillan, and Simon & Schuster. The commitments address competition concerns relating to the distribution and retail prices of e-books in the EEA. The commitments brought to end formal proceedings initiated by the Commission following unannounced inspections in March 2012 (COMP/39847 – E-books) (see Volume 1, Issue 8).
ECJ preliminary ruling on vertical agreements in the insurance industry. On 13 March 2013, the ECJ handed down a preliminary ruling on the question of the application of Article 101 TFEU to certain bilateral vertical arrangements between car insurers and car dealerships. The Hungarian competition authorities characterized the vertical agreements as restrictions by “object” (i.e., as a “hardcore” cartel offence) and imposed fines totalling €23 million. In its judgment, the ECJ confirmed that while vertical agreements are, by their nature, often less damaging to competition than horizontal agreements, they can nevertheless have as their object the restriction of competition. The ECJ found that vertical objects can have anti-competitive object where, following a concrete and individual examination of the wording and aim of the contested agreements and of the economic and legal context of which they form a part, it is apparent that they are, by their very nature, injurious to the proper functioning of normal competition on one of the markets concerned (Case C-32/11, Allianz Hungária Biztosító Zrt., Generali-Providencia Biztosító Zrt. and others. v Gazdasági Versenyhivatal, Judgment of 13 March 2013) (ECJ Press Release No 29/2013) (see Volume 1, Issue 2).
Phase I Clearance
- M.6809 – Daimler AG / Mercedes-Benz Österreich Vertriebsgesellschaft / Mercedes-Benz Financial Services Austria / Mercedes Benz Hungária (12.03.2013) (MEX/13/0313).
- M.6832 – The Goldman Sachs Group / TPG Lundy / Ainscough Crane Hire (14.03.2013).
- M.6833 – The Goldman Sachs Group / TPG Lundy / Britannia Living Group Limited (08.03.2013) (MEX/13/0311).
- M.6838 – The Goldman Sachs Group / TPG Lundy / Mavisbank (12.03.2013) (MEX/13/0313).
- M.6840 – The Goldman Sachs Group / TPG Lundy / Romanes Media Group Ltd (12.03.2013) (MEX/13/0313).
- M.6849 – Enel Green Power / Seci Group / Powercrop (12.03.2013) (MEX/13/0313).
- M.6853 – Flextronics International Ltd. / Certain Assets belonging to Motorola Mobility LLC (08.03.2013) (MEX/13/0311).
- M.6864 – DSE / INCJ / Solar Ventures / JV (11.03.2013) (simplified review).
- M.6807 – Mercuria Energy Asset Management / Sinomart KTS / Vesta Terminals (07.03.2013) (MEX/13/0308).
- M.6861 – B&C Industrieholding / AMAG Austria Metall (07.03.2013) (simplified review).
Competition Commission consults on Rank / Gala Casinos proposed final undertakings. The Competition Commission (CC) has invited comments on its proposed final undertakings in relation to the proposed acquisition by The Rank Group Plc of Gala Casinos Limited (see Volume 1, Issue 16). Representations should reach the CC by 26 March 2013 (see Rank / Gala Casinos CC merger inquiry).
Speech by UK OFT Chief Executive, Clive Maxwell. “OFT Developments in Competition Law and Enforcement” (13 March 2013).
Iran (Human Rights)
Council Implementing Regulation (EU) No 206/2013 (OJ L 68/9, 12.3.2013) amending Council Regulation (EU) No 359/2011 of 12 April 2011 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Iran. The Implementing Regulation lists additional designated persons in Annex I.