EU Antitrust

Commission closes Mathworks investigation. On 2 September 2014, the European Commission announced that it has decided to close proceedings against MathWorks, Inc., a US software company, in relation to an alleged refusal by MathWorks to provide a competitor with end-user licences and interoperability information with respect to its products, constituting a breach of Article 102 of the TFEU (Case AT.39840). The Commission has provided no further explanation for its decision to close the proceedings.

Cartels

Commission fines participants in smart chip cartel. On 3 September 2014, the European Commission announced that it has fined Infineon, Philips, Samsung and Renesas a total of EUR138 million for coordinating their market behaviour for smart card chips in the EEA, in breach of Article 101 of the TFEU (Case AT.39574). The Commission found that the cartel operated throughout the EEA, with the companies involved colluding through a network of bilateral contacts in order to determine their respective responses to customers’ requests to lower prices. The Commission also found that the parties discussed and exchanged sensitive commercial information on pricing, customers, contract negotiations, production capacity or capacity utilisation and their future market conduct. Renesas (and its joint venture parent companies, Hitachi and Mitsubishi) benefitted from full immunity under the Commission’s 2006 Leniency Notice. Samsung received a reduction of 30% of its fine for cooperating with the investigation. Philips divested its smart card chips business after the infringement, but remains liable for its conduct during the period of the infringement.

ECJ judgment on YKK’s appeal against General Court judgment on fasteners cartel. On 4 September 2014, the European Court of Justice (ECJ) handed down its judgment on an appeal by companies in the YKK group against a judgment of the General Court that dismissed their appeal against the European Commission’s decision on the fasteners cartel (C-408/12). The ECJ concluded that the General Court had erred in its interpretation of Article 23(2) of Regulation 1/2003 in relation to the fine imposed for one cartel infringement. The Commission had found that YKK Stocko was solely liable for the infringement and for the fine imposed for the period prior to its acquisition by the YKK group. Its new parent companies were found to be jointly and severally liable for the infringement and fine after the acquisition. However, in determining the 10% of turnover upper limit of the fine imposed solely on YKK Stocko, the Commission had erroneously used the turnover of the whole YKK group. Only the turnover of YKK Stockco, the undertaking liable for the infringement during the relevant period, should have been used. The ECJ has, therefore, substantially reduced the fine imposed solely on YKK Stocko. However, the ECJ held that the General Court had not erred in concluding that the Commission had been entitled to impose a multiplier for deterrence based on the economic strength of the entire YKK group.

ECJ concludes that national rules for minimum road haulage prices infringe Article 101 of the TFEU. On 4 September 2014, the ECJ handed down its preliminary ruling on a reference from an Italian court, which had asked whether Italian law infringed EU law by providing that the price of haulage services could be no lower than minimum operating costs (C-184/13). In its preliminary ruling, the ECJ confirmed that Article 101 of the TFEU, read in conjunction with Article 4(3) of the Treaty on European Union (TEU), precludes national legislation which states that the price of road haulage services for hire and reward may not be lower than minimum operating costs, as fixed by a body composed mainly of representatives of the economic operators concerned.

EU Mergers

Phase I Mergers

  • M.7314 – Nordic Capital / Gina Tricot (03.09.2014)
  • M.7318 – Rosneft / Morgan Stanley Global Oil Merchanting Unit (04.09.2014)
  • M.7362 – HIG Capital Partners SAS / Aviapartner (04.09.2014)
  • M.7368 – Riverstone Holdings LLC / Carlyle Group / Hestya Energy B.V. / HES Beheer N.V. (03.09.2014)

Phase II Mergers

  • M.7009 - Holcim / Cemex West (03.09.2014)

State Aid

ECJ judgment in appeal against General Court judgment on Commission decision on aid to SNCM. On 4 September 2014, the ECJ dismissed the appeals by France and Société Nationale Maritime Corse-Méditerranée SA (SNCM) against a General Court judgment in an appeal by Corsica Ferries France SAS (CFF) against a European Commission decision conditionally approving French plans to grant restructuring aid to SNCM (Case C-533/12). The ECJ considered that the General Court correctly found that the Commission committed an error of law and manifest errors of assessment in: (i) its analysis of the sale of SNCM at a negative selling price; (ii) of a EUR8.75 million cash injection by France, made concomitantly with significant private operator intervention; and (iii) of social aid. Further, the ECJ held that the Commission’s analysis of the balance of restructuring aid was based on a false premise. The ECJ concluded that the General Court, therefore, was correct to annul the relevant parts of the Commission’s decision.

UK Mergers

CAT revised order on conduct of Groupe Eurotunnel/ SCOP appeal. On 1 September 2014, the Competition Appeal Tribunal (CAT) made a revised order setting out the future conduct of the applications by Groupe Eurotunnel and SCOP for review of the UK’s Competition and Market Authority (CMA) remittal decision on the Eurotunnel / SeaFrance merger (Groupe Eurotunnel/ SCOP v CMA). This directions order replaces one made on 1 August 2014.

CMA revises initial enforcement order to Information Resources and Aztec Group. The CMA has replaced the initial enforcement order under Section 72 of the Enterprise Act 2002 addressed to Information Resources Inc. (IRI), Information Resources (UK) Limited, and Aztec Information Services Holdings Limited, which was made on 1 August 2014 and concerns the CMA’s re-investigation of the completed acquisition by IRI of Aztec Group after the CAT quashed the decision of the Office of Fair Trading that approved the merger. Section 72 of the Enterprise Act, as amended by the Enterprise and Regulatory Reform Act 2013 (ERRA), allows the CMA to make initial enforcement orders to prevent pre-emptive action in completed (and anticipated) mergers.

Speeches & Publications

New de minimis notice published in Official Journal. On 30 August 2014, the European Commission published its notice on agreements of minor importance which do not appreciably restrict competition under Article 101(1) of the Treaty on the Functioning of the European Union (TFEU) in the Official Journal. The notice makes it clear that agreements which have as their object the prevention, restriction or distortion of competition do not benefit from the safe harbour provided by the de minimis market share thresholds (which have not been changed). The notice states that restrictions that are listed as so-called “hard core” restrictions in any of the block exemption regulations are generally considered to constitute restrictions by object.