General Court dismisses heat stabilisers cartel appeal. On 20 March 2014, the General Court dismissed an appeal against the 2009 European Commission (Commission) decision on the heat stabilisers cartel (Case COMP/C.38.589). According to Faci SpA, the Commission failed to establish to the requisite legal standard that Faci participated in the first aspect of the infringement, consisting of the fixing of prices and allocation of markets through sales quotas, and also the allocation of customers on the ESBO/esters market (Faci admitted tohaving participated in the second aspect of the infringement, namely the exchange of commercially sensitive information). The General Court found that, taken as a whole, various items of evidence establish that the collusion at issue went well beyond a mere exchange of commercially sensitive information. The General Court also found that the Commission’s administrative procedure (two years and two months) could not be criticised for undue length. Finally, the General Court dismissed arguments by Faci related to the reduction granted under Paragraph 35 of the 2006 Fining Guidelines (inability to pay) to another undertaking (Case T-46/10 – Faci SpA v Commission, Judgment of 20 March 2014).
Commission announces settlement of automotive bearings cartel. On 19 March 2014, the European Commission (Commission) imposed fines totaling EUR 953 million on six producers of car and truck (automotive) bearings (used by car, truck and car part manufacturers to reduce friction between moving parts inside a vehicle) (IP/14/280, 19/03/2014). According to the Commission, the participants coordinated RFQ pricing in the EEA through multi-, tri- and bilateral contacts between April 2004 and July 2011. Certain of the participants benefited from immunity and reductions of fines under the 2006 Leniency Notice and all participants received a further reduction of ten per cent pursuant to the 2008 Settlement Notice. The Commission Decision is the twelfth settlement decision since the introduction of the settlement procedure for cartels (Case 39922 – Bearings) (SPEECH 14/233).
Article 101/102 TFEU Procedure
General Court judgment on access to Commission documents related to inability to pay requests. On 20 March 2014, the General Court handed down a judgment related to the 2009 Commission decision on the heat stabilisers cartel (Case COMP/C.38.589). During the proceedings, two cartel participants requested that the Commission take into account their inability to pay within the meaning of Paragraph 35 of the 2006 Fining Guidelines. The Commission subsequently refused to disclose documents to Reagens SpA related to these requests. The General Court found that the Commission had erred in finding that non-confidential versions of the requests and the Commission’s standard first questionnaire were covered by the exception from disclosure relating to protection of commercial information (Article 4(2) of Regulation 1049/2001). The Commission had, however, been entitled to refuse access to the responses to the Commission’s first questionnaire, the Commission’s second targeted questionnaires and the responses to those. These documents contained confidential information about the undertakings’ financial position and there was no overriding public interest requiring disclosure (Case T-181/10 – Reagens SpA v Commission, Judgment of 20 March 2014).
Commission confirms dawn raids in automotive exhaust systems sector. On 25 March 2014, the Commission confirmed that unannounced inspections were conducted at the premises of a number of companies active in the automotive exhaust systems industry in several Member States on 25 March 2014 (MEMO 14/218).
Article 102 TFEU
Deutsche Bahn commitments decision published. On 25 March 2014, the Commission published a summary of its decision to make legally binding commitments offered by Deutsche Bahn (OJ C86/4, 25.03.2014) (Case AT.39678) (see Volume 1, Edition 52).
Council of the European Union announces agreement on antitrust damages directive. On 26 March 2014, the Committee of Permanent Representatives (COREPER) endorsed an agreement between the Council of the European Union Presidency and European Parliament representatives laying down new rules aimed at facilitating private damage claims following antitrust violations. The text of the directive must now be formally approved by the European Parliament and the Council (Press Release).
Phase I Clearance
- M.7056 – USS / British Airways / easyJet / Monarch / Crown Shareholder / NATS (18.03.2014).
- M.7104 – Crown / Mivisa (subject to conditions) (IP/14/270) (14.03.2014).
- M.7139 – GDF Suez / Predica Prévoyance / Omnes Capital / FEIH (simplified review) (19.03.2014).
- M.7141 – AGCO Corporation / Basic Element / JV (simplified review) (18.03.2014).
- M.7163 – Société Générale / Newedge Group (simplified review) (14.03.2014).
- M.7165 – GVI / LBEIP / OHL / Phunciona (simplified review) (18.03.2014).
- M.7193 – Gores Group / Premier Foods / Hovis (simplified review) (26.03.2014).
- M.7195 – Nestlé / Lotte Group (simplified review) (18.03.2014).
OFT issues settlement decision in care home medicine cartel case. On 20 March 2014, the OFT published its Decision finding that Hamsard 3149 Limited, its subsidiaries Quantum Pharmaceutical Limited and Total Medication Management System (trading as Tomms Pharmacy) and Celesio AG (and its subsidiary Lloyds Pharmacy Limited) entered into a market-sharing agreement in relation to the supply of prescription medicines to care homes in England between May 2011 and November 2011 (see Volume 1, Edition 51). The OFT imposed a fine of £370,226 on Hamsard and its subsidiaries while Celesio/ Lloyds benefitted from full immunity under the OFT’s leniency policy (CE/9627/12) (Press Release 17/14).
Emerson and Schunk settlement in carbon and graphite cartel damages action. On 26 March 2014, the Competition Appeal Tribunal (CAT) published an order withdrawing a damages claim brought by Emerson Electric and Valeo against Schunk GmbH and Schunk Kohlenstofftechnik GmbH (Schunk) related to the carbon and graphite cartel (Case AT.38359). According to the Order, the claimants and Schunk have agreed a confidential settlement (Case No. 1077/5/7/07).
Competition Commission determines not to release IMS Health data undertakings. On 26 March 2014, the Competition Commission (CC) published its final decision on its review of behavioural undertakings given by IMS Health Incorporated (IMS) in 1999 following the acquisition by IMS of Pharmaceutical Marketing Services Inc. The CC concluded that, despite the publication of NHS prescription data, IMS still faces limited competition in this market and that absent the undertakings IMS could use its position to create bundled products and stymie emerging competitors. This confirms the CC’s provisional decision published in December 2013 (CC Press Release) (see Volume 1, Issue 40).
DG Comp pilots document exchange platform. On 17 March 2014, the DG Comp announced a new digital platform for the exchange of trusted documents between the Commission and third parties. DG Comp anticipates making eTrustEx widely available in the near future.
Speech by Director General for Competition, Alexander Italianer. Competition Policy in the Digital Age, Innsbruck, 7 March 2014.
Council Regulation (EU) No 269/2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ L78/6, 17.03.2014). The Council Regulation provides for the freezing of funds and economic resources of the persons listed in Annex I. Additional persons have subsequently been added to Annex I pursuant to Council Implementing Regulation No 284/2014 of 21 March 2014.
Democratic Republic of the Congo
Council Regulation (EU) No 270/2014 amending Regulation (EC) No 889/2005 imposing certain restrictive measures in respect of the Democratic Republic of Congo (OJ L , 18.03.2014). The Council Regulation provides for an additional derogation from the arms embargo. Furthermore,Council Regulation (EU) No 271/2014 amending Regulation (EC) No 1183/2005 has amended the criteria for the designation of persons and entities to be subject to the restrictive measures.