EUROPEAN UNION

Institutions and Procedure Internal Antitrust Manual of Procedures Published by the Commission

The Commission published its Antitrust Manual of Procedures in March 2012. The Manual consists of internal working documents on the procedures for the application of Article 101 (which prohibits anti-competitive agreements) and Article 102 (which prohibits abuse of dominance) of the Treaty on the Functioning of the European Union (“TFEU”). It sets out a wide variety of the internal Commission procedures including commencing proceedings, requests for information, conducting interviews, dealing with leniency applications, drafting and issuing statements of objections, granting access to the file, the commitments procedure, reaching final decisions, and post-decision matters such as litigation, recovery of fines and publication of decisions.

The Manual does not establish or change competition rules; it is intended to be a practical working tool to aid staff. As such, its publication will aid practitioners and companies to understand the Commission’s practices and procedures in applying those rules.    

Article 101 - Cartels

2012 Statistics

In 2012 the Commission reached four cartel decisions and imposed fines totalling €1.876 billion. This can be contrasted to the far lower total amount of fines imposed in 2011 of €614 million.

The largest fines in a single case (€1.47 billion) were imposed in the cathode ray tubes cartel.

In 2011, three out of the four cartel decisions involved the application of the settlement procedure. In 2012, by contrast, only one cartel decision involved use of the settlement procedure.

Liability of Parties to a Joint Venture

In the DuPont judgment handed down in February 2012, on appeal the General Court confirmed that the Commission was right to find that parties to a joint venture company, which was involved in the chloroprene rubber cartel, were each liable for the conduct of the joint venture. This was because the parties to the joint venture exercised decisive control over the company despite arguments from DuPont (one of the parties) that the joint venture was distinct from its shareholders.

According to the General Court, although the parties to the joint venture and the joint venture company had separate legal identities, this was not decisive. The fact that the joint venture always acted on the instructions of the parties to the joint venture was key.

Failure to Cooperate

Following a dawn raid by the Commission at E.ON Energie AG (E.ON) in 2006, the Commission fixed a seal on a locked door in order to secure documents. The seal included a warning that breaking the seal could result in fines. On the following day, the Commission’s officials found the seal broken. In 2008, the Commission fined E.ON €38 million for breaking the seal.

E.ON denied breaking the seal and argued that the Commission possessed the only key to the room, when in fact over 20 of its employees had keys. It also argued that the ‘void’ sign (signalling the seal had been broken) appeared as a result of vibrations in the building, the use of cleaning products, the age of the seal or humidity.

E.ON used these arguments in appeals to the General Court and to the Court of Justice of the European Union (“CJEU”). On 22 November 2012, the CJEU dismissed the appeal by E.ON against the General Court’s judgment.

In a similar case relating to dawn raids, the Commission fined Energeticky a Prumyslovy and EP Investment Advisors €2.5 million for failing to comply with a request by the Commission to block e-mail accounts of all key personnel and open encrypted e-mails. In addition, it was found they actually diverted incoming emails.

These cases show a clear commitment by the Commission to levy substantial fines against undertakings which fail to cooperate with their dawn raid investigations, whether or not the investigations result in findings of competition law breaches.

Power of the Commission to Seek Damages in National Courts on Behalf of the EU

In November 2012, the CJEU ruled (following a referral from the Brussels Commercial Court) that the Commission was entitled to seek damages for financial loss suffered by the European Union as a result of the lifts and escalators cartel. The EU entered into contracts for the installation and maintenance of lifts and escalators within its institutions on prices which were higher than the market price, as a result of the cartel. The CJEU found that the Commission was entitled to seek damages in national courts against companies which had been found to be involved in cartels, despite the fact that it was the Commission itself that made those findings.

This is controversial. The Charter of Fundamental Rights of the EU guarantees the right to a fair trial, including the principle of equality of arms. However, European competition legislation provides that where national courts rule on agreements, decisions or practices under Article 101 TFEU (which prohibits cartels) which have already been the subject of a Commission decision, national courts cannot reach a decision which is contrary to that adopted by the Commission. The CJEU held that this latter rule applied even where national courts were hearing an action for damages for loss sustained as a result of an agreement or practice which had previously been found by the Commission to infringe Article 101 TFEU, as the procedures of the EU courts afford the safeguards required by the Charter of Fundamental Rights of the EU.

Article 101 - Other

De Minimis

The Commission's Notice on Agreements of Minor Importance (de minimis notice) provides that the Commission will not bring competition law infringement proceedings in respect of an agreement which does not have an appreciable effect on competition; deemed where the aggregate market share of the parties (where competitors) do not exceed 10% or, in the case of non competitors, where the market share of each party does not exceed 15%.

The CJEU recently held that Article 101 TFEU can be applied to an agreement even if it is below the de minimis thresholds provided the agreement actually has an appreciable effect on competition. The Court re-emphasised the fact that the de minimis threshold is not binding on national competition authorities.  

Article 102

Samsung/Motorola

In December 2012, the Commission announced that it had sent Samsung a statement of objections based on its initial findings that in 2011 Samsung abused its dominant position by seeking injunctive relief against Apple for alleged infringements of some of its standard essential patents for 3G mobile devices.

Samsung had given a commitment in 1998 to the European Telecommunications Standards Institute that, in order to ensure widespread access to standardised technology, it would license any fundamental patents that it had declared essential to the ETSI 3G UMTS standard on fair, reasonable and non-discriminatory (FRAND) terms. Moreover, Apple was willing to discuss entering into a FRAND licence with Samsung.

The Commission found that seeking injunctive relief in these circumstances harmed competition. This was because there was a possibility of products being omitted from the market and the distortion of licensing negotiations.

On a similar topic and following on from the Samsung investigation, the Commission is investigating complaints that Motorola Mobility Inc (Motorola) has abused its dominant position regarding particular standard essential patent rights and has not honoured its commitment to license those essential patents to standard setting organisations on FRAND terms.

It is alleged that Motorola has breached Article 102 TFEU by seeking and enforcing injunctions against Apple’s and Microsoft’s leading products such as iPhone, iPad, Windows and Xbox on the basis of Motorola’s essential patent rights. The Commission is also concerned that Motorola has offered unfair licensing terms for its standard essential patents to Apple and Microsoft.

AstraZeneca

In December 2012, AstraZeneca lost its appeal to the CJEU in relation to findings that in breach of Article 102 TFEU, it had abused its dominant position in its stomach ulcer treatment Losec.

The case concerned two key findings of abuse by AstraZeneca. Firstly, that it made misleading statements regarding the dates of marketing authorisations to patent offices and national courts in order to acquire an increased protection period through supplementary protection certificates (SPCs) for Losec and thereby delay generic market entry. Secondly, that AstraZeneca requested deregistration of the marketing authorisations for Losec capsules in certain countries along with the actual withdrawal of Losec capsules from the market. Generic producers were therefore prevented from using the capsule formulation as a reference product. This was done in conjunction with AstraZeneca’s launching of a new Losec tablet.

On appeal, the General Court reduced the fine from €60 million to €52.5 million due to the novelty of the findings of abuse for manipulation of regulatory procedures. AstraZeneca then further appealed to the Court claiming that the General Court had made a series of errors in law in respect of market definition, analysis of the abuses and the level of the fine.

AstraZeneca argued that its behaviour was merely “competition on the merits” and was not abusive and that even if it was, it should be granted a reprieve because of the novelty of the abuses and their minimal effect on competition. Nonetheless, the appeal was rejected on all grounds.

The Court has thus confirmed that the non-exhaustive list of Article 102 TFEU abuses includes abusive manipulation of regulatory processes and, in so doing, has confirmed that it will not strike down Commission decisions merely because they make findings in relation to new categories of abuse.  

Merger Control

Prohibition of Merger Between Deutsche Borse and NYSE Euronext

In February 2012, the Commission prohibited the merger between two derivative exchanges -  Eurex which is owned by Deutsche Borse and Liffe, owned by NYSE Euronext - because it would have eliminated competition between Deutsche Borse and NYSE Euronext (the two largest derivative exchanges in Europe). It was the Commission’s view that the merger would have created a monopoly in European financial derivatives trading and clearing thereby affecting competition and innovation in derivative products. The Commission also felt that the merger would result in higher prices and it would be difficult for new players to enter the market.

Although Deutsche Borse and NYSE Euronext offered commitments to sell certain assets and provide access to the merged entity’s clearing house for new products in order for the merger to be cleared, the Commission was not satisfied. Deutsche Borse has appealed against the Commission’s decision and it remains to be seen whether or not the Commission’s decision will be overturned.

This was the only merger prohibited in 2012 out of a total of 283 merger notifications. The Deutsche Borse and NYSE Euronext is the third merger to be prohibited under the Merger Regulation.

Developments in 2013

Simplification of EU Merger Control

Further simplification of the simplified merger procedure and the review of its pre-notification practice is expected in order to reduce and simplify regulation.

Review of the Technology Transfer Block Exemption Regulation

It is likely that the Commission will consult on proposals to amend the Technology Transfer Block Exemption Regulation and its Guidelines (which provide exemption from competition concerns for certain IP licence agreements which satisfy their conditions) in readiness for their termination on 30 April 2014.

Disclosure

It will be interesting to review further judicial decisions concerning authority’s obligations to provide access to documents submitted during competition investigations or cases to third parties. A decision in 2011 (Pfleiderer) said that national courts must carry out a facts-based consideration, on a case by case basis, in accordance with EU law to weigh up the interests of the aggrieved third party requesting access to the information and the party who has disclosed information in confidence.

The issue has become increasingly important in relation to disclosures made in leniency applications and we can expect further judicial activity in this area. In February 2013, there has already been an Advocate General’s opinion on the subject following a referral from the Austrian courts.

Financial Services

Follow-up proposals to the Green Paper on achieving an assimilated European market for card, internet and mobile payments will be published by the Commission and the competition investigation into e-payments by the European Payments Council will continue.

The investigation into the potential collaborative manipulation of the LIBOR, EURIBOR and TIBOR benchmark rates and the Commission's investigation into suspected anti-competitive practices in relation to credit default swaps will continue in 2013.  

UNITED KINGDOM

Institutions and Procedure

Competition Law Reform

Following the consultation paper published in March 2011 by the Department for Business, Innovation and Skills (BIS) on reforming the UK competition regime, the Government’s response to the consultation was published in March 2012. It decided to establish a single competition body in the Competition and Markets Authority (“CMA”) (through the merger of the Office of Fair Trading (“OFT”) and Competition Commission) whilst retaining the two phase approach to mergers and market investigations. It is understood that phase 1 decisions, which are currently considered by the OFT, will be dealt with by the CMA Board and phase 2 decisions, which are currently considered by the Competition Commission, will be dealt with by an independent panel of experts.

It is also proposed that the CMA will have the power to investigate alleged anti-competitive practices across different sectors. The Secretary of State will be given the power to require the CMA to investigate public interest issues as well as anti-competitive practices, which reintroduces to an extent the political intervention which was only relatively recently removed.

The Government has also proposed the removal of the “dishonesty” requirement from the criminal cartel offence contained in the Enterprise Act 2002. This raises issues which other competition authorities in the world have had to grapple with in assessing the correct level of culpability required to enforce criminal sanctions over and above existing and serious civil penalties.

These changes to UK Competition law are currently contained in the Enterprise and Regulatory Reform Bill which are being considered by parliament.

The Financial Services Act 2012

The Financial Services Act 2012 creates the Financial Conduct Authority which will have a duty to promote effective competition in the financial services sector. It will also have the power to refer potentially anti-competitive practices to the OFT (and in future the CMA). Although the Financial Conduct Authority has not been given any competition law powers, the Government will consider whether it should be given such powers in the next five years. 

OFT Guidance on Penalties

On 10 September 2012, the OFT published guidance on the appropriate amount of a penalty to be imposed under the Competition Act to ensure that penalties reflect the seriousness of the infringement. The OFT will use a six-step approach in calculating fines; the maximum starting point will be 30% of the undertaking’s relevant turnover and the exact starting point will depend on the seriousness of the offence and the deterrent effect. The guidance also indicates that the relevant turnover is that of the undertaking in breach of competition law in the relevant product and geographic market affected by the infringement in the last business year.

The guidance allows for adjustment of the penalty to take account of the duration of the infringement and any aggravating factors such as persistent unreasonable behaviour that delays the OFT’s investigation or for leading or instigating the infringement. Furthermore, the guidance provides allowances for leniency and settlement discounts, as well as reductions for financial hardship in exceptional cases. It also allows for adjustment to ensure the penalty will lead to deterrence and will be proportionate.

OFT Consultation on Leniency

On 10 October 2012, the OFT published a further consultation on proposals to revise its leniency guidance. Draft guidance was originally published in October 2011 and included a requirement that leniency applicants waive legal professional privilege where there is a criminal investigation. The OFT’s consultation is seeking responses discussing the possibility of removing this requirement. It is also considering the option of utilising independent counsel to verify a leniency applicant’s claim for privilege.

Chapter I - Cartels

BA and Virgin Fuel Surcharges 

The OFT issued a decision in April 2012 finding that between August 2004 and January 2006 British Airways (BA) and Virgin Atlantic (Virgin) aligned their fuel surcharge pricing on long haul passenger flights by communicating pricing information. The OFT imposed a fine of £58.5 million on BA (reduced from £121.5 million due to cooperation). Virgin was not fined as it successfully applied for leniency and, as the first party to do so, was granted full immunity.

National Grid Electricity Transmission Claim for Damages

Following the CJEU’s decision to impose fines of more than €750 million on companies involved in the gas insulated switchgear cartel, National Grid Transmission Plc (NGET) brought an action to recover the losses it suffered.

NGET sought disclosure of documents such as the confidential version of the Commission’s decision and responses by the cartel participants. It also requested access to leniency documents. The High Court applied the CJEU judgment in Pfleiderer which dealt with third party access to documents under a leniency programme. That case stated that competition legislation which allows for information sharing between EU institutions and national courts and competition authorities does not preclude a party affected by breach of competition law from accessing documents submitted by a cartel participant pursuant to a leniency application. Therefore, member states had to establish rules to determine a right of access to such documents. It also required national courts to balance the competing interests of the leniency applicant and the person seeking disclosure.

The High Court found that the Commission did not have exclusive jurisdiction to determine disclosure of leniency material and it decided that extracts of the documents submitted in the leniency application could be disclosed because they would not unduly prejudice the leniency applicant or expose them to further liability. 

Chapter II - Abuse of Dominance

First Damages Awarded by the Competition Appeal Tribunal (CAT)

The CAT has, for the first time, awarded exemplary damages in an action brought in a “follow on” action (damages claim brought without having to prove that competition law has been infringed because there has already been a ruling which proves that). The CAT has only a narrow ability to go beyond the initial infringement ruling. In the 2 Travel case the OFT had already found in November 2008 that Cardiff Bus had taken part in predatory conduct in abuse of its dominant position, but had not levied a fine.

In January 2011, 2 Travel sought damages against Cardiff Bus for lost profits, loss of business, wasted management and employee time, and loss of opportunity suffered as a result of the abuse of dominance. It also sought exemplary damages.

To push 2 Travel out of the market, Cardiff Bus introduced a service that ran on the same routes at the same times as certain 2 Travel services. Their actions resulted in losses to 2 Travel’s business which forced 2 Travel to withdraw from the market. Upon this withdrawal, Cardiff Bus terminated its own service. 2 Travel were awarded damages for loss of profits of £33,818.79, plus interest. On the basis that 2 Travel were already having financial problems and would have entered into liquidation irrespective of the breach, compensatory damages claim was rejected by the CAT. However, 2 Travel were awarded exemplary damages of £60,000. The CAT held that due to the outrageous conduct of Cardiff Bus who had deliberately decided to flout the law with complete disregard for the rights of 2 Travel, exemplary damages were apt in this case.

This decision is likely to result in the bringing of more claims for exemplary damages in competition cases. The CAT stated where exemplary damages are sought, the competition law breach in question must be intentionally or recklessly made. In this case, previous case law which says that exemplary damages will not be recoverable where the defendant has already been fined for the action complained of was not a bar here as the OFT had not levied a fine.

Merger Control

Guidance

On 31 October 2012, the Competition Commission published the final version of its new detailed merger procedural guidelines. These guidelines explain the key stages of a merger inquiry following a referral by the OFT and provide details on the Competition Commission's processes. The guidance sets out:

  • how the Competition Commission deals with parties;  
  • how information is collected;
  • how the initial assessment is formed;
  • how opinions are sought;
  • some possible remedies, how the final report is announced and the implementation of remedies; and  
  • information on procedural matters regarding completed mergers.

On 31 October 2012, the Competition Commission also published draft revised guidance on disclosure of information in merger inquiries and market investigations for consultation.

Significant changes have been proposed in the new guidance, especially in relation to the Competition Commission's attitude to disclosure throughout the procedural steps of its enquiries, including the remedies stages and remittal procedures. The range of the guidance now comprises reviews of undertakings and orders under the Enterprise Act 2002 and the Fair Trading Act 1973. Additional details of the practical aspects of handling confidential information are also dealt with.

OFT Investigations

In 2012, mergers work continued to increase.

  • The OFT made 100 merger decisions compared with 94 in 2011. Of these, 21 mergers were found not to qualify and 62 were granted unconditional clearances with three under the de minimis exception.
  • The OFT sought undertakings in lieu of reference to the Competition Commission in five cases, compared with six in 2011, five in 2010 and four in 2009.
  • The OFT referred 9 mergers to the Competition Commission (eight in 2011) which shows that in comparison with previous years mergers work continues to increase.

Competition Commission Referrals

The Competition Commission cleared all of the merger cases referred to it either unconditionally or following the giving of structural undertakings, except for the Akzo Nobel/ Metlac matter which was prohibited.

Developments in 2013

Legislative Reform

As discussed above, it is expected that The Enterprise and Regulatory Reform Bill will receive Royal Assent early in 2013. If so, the new CMA will be established in 2013 and it is thought that it will be able to use its new powers by April 2014.

Private Actions

The government has recently published its response to the April 2012 consultation on private actions in competition law.

The government has decided to allow the CAT to hear standalone cases (where breach of competition law must be proved) as well as follow on actions. A limited opt-out system for collective actions will also be introduced (the UK currently has an opt in, follow on system which has resulted in one case in which only 0.1% of the potential claimants signed up). The CAT will have the discretion to determine whether a collective action should be opt-in or opt-out. Additionally, the courts will have the power to transfer competition law cases to the CAT.

The response stopped short of recommending changes to the law to protect leniency applicants from being subject to third party damages claims.

Many of the proposed changes will require further legislation to implement but the government has committed to introduce those that do not, as quickly as possible.

FRANCE

Institutions and Procedure

Publication of Two Notices Respectively on (i) Settlement Procedure and (ii) Compliance Programs

The French competition authority, Autorité de la Concurrence, issued two major framework documents dated 10 February 2012.

The first framework document examines the benefits of the settlement procedure and specifically the impact of this procedure on the penalty provided by the Autorité de la Concurrence in the case of anticompetitive practice, cartel or abuse of a dominant position, by a company. A company that waives its right to challenge the charges notified by the Autorité de la Concurrence’s investigation services is likely to obtain a 10% reduction in fines.

Furthermore, an additional reduction of 5% up to 15% may be granted, if the company undertakes to improve its behaviour in the future. Those reductions are intended to lead companies to implement compliance programs based on the second framework document’s recommendations set up by the Autorité de la Concurrence. In this document, the French competition watchdog does not provide any “set” rules but rather recommendations: that companies should integrate five points into their compliance programs : (i) a firm, clear and public commitment by the entire board and management to comply with competition rules and to support the company’s compliance program, (ii) empowering someone, within the organization, to handle the implementing and overseeing of the compliance program, with the necessary autonomy and means to fulfill this role, (iii) developing an effective information, training and awareness toolkit in order to spread and maintain a competition culture at all levels, from the top management to each member of the staff of the company, (iv) setting up effective control, audit and warning mechanisms, and (v) implementing sanctions in the event of any detection of a violation of competition rules or of a breach of the company's compliance program.

Further, an undertaking which has adopted a compliance program that discovers and puts an end to an anticompetitive practice, other than its participation in a cartel, prior to the initiation of an investigation or proceeding by the Autorité de la Concurrence, may claim a mitigating circumstance if the Autorité later sanctions the practice.

Article L. 420-1 of the French Commercial Code - Cartels

French and German Millers Fined a Total of €242 Million Because of a Price Fixing Cartel

Pursuant to decision n°12-D-09 of 13 March 2012, the French competition authority fined French millers €146.9 million because of an anticompetitive agreement and it also fined French and German millers €95.5 million for having limited flour imports between France and Germany.

French Anticompetitive Agreements

The Autorité found that the French flour market was dominated by two miller groups: France Farine and Bach Mühle, which market flour, for large-scale distribution and hard-discount stores respectively.

The Autorité found that those miller groups had reached an agreement on the flour prices and a geographic allocation of customers. According to the French competition watchdog, due to the absence of sufficient competition within the flour market, consumers were charged additional costs for their packaged flour, which were estimated at about 11%.

Non-Compete Agreement Between German and French Millers

The Autorité de la concurrence also fined French and German millers for entering into a non-compete agreement which limited flour imports between the two countries to a certain predetermined level over a six-year period (2002-2008), allowing those millers to keep flour prices above the competitive level in their respective countries. One miller company which would have been liable for a fine of €16.66 million was granted full immunity under the leniency program.

This decision is a landmark case in light of the amount of the fine and it shows that cartels are severely sanctioned by the Autorité, especially when they pertain to indispensable consumer products such as flour (or laundry detergent - see last year’s bulletin by Fasken Martineau)

Article L. 420-2 of the French Commercial Code - Abuse of a Dominant Position

Mobile Telephony

Pursuant to decision n°12-D-24 dated 13 December 2012, the Autorité de la concurrence fined two major French mobile operators a global amount of €183.1 million for implementing anticompetitive practices.

After a complaint initiated by Bouygues Télécom, Orange and SFR were being sued for having marketed, between 2005 and 2008, special packages called “abundance on net” which allow their customers to make unlimited calls within certain hours to customers using the same operator. According to the Autorité de la concurrence, those packages resulted in excessive rate differentiation practices between “on net” and “off net” offers (i.e., when clients call customers of an operator different than their own), for which customers paid a higher price not justified by any consideration as to the costs incurred by the operator.

These packages were found to hamper the fluidity of the market by accentuating the “club” effect of the two main mobile operators and by deterring existing and new customers from migrating to a third network. As a result, it weakened the third mobile operator, Bouygues Telecom (Free Telecom was not yet present on French mobile market at that time) which was enabled with its 17% market shares to compete with Orange and SFR. In order to prevent eviction from the market, Bouygues Telecom had indeed marketed “cross net” unlimited call offerings allowing its customers to make unlimited calls to their interlocutors, regardless of their network which automatically implied corresponding increasing of costs (especially due to termination costs charged by Orange and SFR to calls coming from Bouygtel’s customers).

This decision is one of the two cases in 2012 where the Autorité de la concurrence imposed a fine higher than €100 million, taking into account the seriousness of the offence and the individual situation of the operators (companies of international groups, with significant resources).

Orange and SFR have appealed this decision in the Paris Court of Appeal and the case is currently pending. 

Sector Inquiries

During 2012, the Autorité de la concurrence launched two landmark inquiries.

The first inquiry launched focuses on on-line sales and more specifically on electrical domestic appliances, cosmetic and personal care products, where it is reported that e-commerce offers to consumers lower prices and more choice than traditional retail sectors. The Autorité de la concurrence intends to ensure that manufacturers and traditional retailers’ marketing agreements do not limit the expansion of e-commerce and the resulting competitiveness. The Autorité has noted that lower prices found on the internet are the result of the emergence of new providers such as: price comparisons websites, online retailers and distributors (in the area of electrical products, they can offer prices at an average of 5 to 10% lower than those in store).

The Autorité de la concurrence noticed that manufacturers often impose conditions on on-line retailers seeking to join their selective distribution network resulting in offerings which are less attractive than those offered to traditional retail brands (even to operators with a strong on-line presence). Thus, the Autorité de la concurrence outlined certain principles of competition law relating to this field: (i) manufacturers have the right to choose their distributor even through a selective distribution network. However, they could not impose on this distributor different terms and conditions for on-line and off-line sales; (ii) manufacturers could not agree on anticompetitive terms and conditions of purchase or supply with on-line distributors that would limit the competitive pressure exerted by on line distributors on traditional retailers.

The results published in October 2012 of the second inquiry (launched in 2011) by the Autorité de la concurrence set forth several recommendations to lower the price of car repairs and maintenance and to optimize competition in this sector.

In its conclusions, the Autorité de la concurrence indicates that it seeks to promote the gradual and controlled opening of the repair and maintenance market of visible spare parts (i.e. original equipment), which is currently a monopoly of car manufacturers (70% of the market whereas equipment manufacturers stand for 30% of the market). This process, known as “the repair clause” aims at reducing the price of visible spare parts, while allowing the sector to operate more efficiently.

The Autorité de la concurrence has also recommended allowing car equipment manufacturers to freely market their own spare parts without being bound by restrictive clauses in the agreements with car manufacturers.

On the consumer’s side, the Autorité considers it necessary to draw up explicit warranty contracts and warranty extension contracts allowing consumers to use the services of an independent repairer without losing the benefit of the warranty.  

Merger Control

The Autorité de la concurrence Cleared the Acquisition of TPS and Canal Satellite by Vivendi Universal and Groupe Canal Plus, Subject to Several Undertakings

On 13 July 2012, the Autorité de la concurrence cleared the acquisition of TPS and Canal Satellite by Vivendi Universal and Groupe Canal Plus, subject to compliance with undertakings ordered to provide sufficient competition in the pay TV markets.

Acquisition of Direct 8 and Direct Star by Vivendi and Groupe Canal Plus, the Decision of the Autorité de la Concurrence

On 23 July 2012, the Autorité de la concurrence cleared the acquisition of Direct 8 and Direct Star by Vivendi and Groupe Canal Plus to Groupe Bolloré, subject to certain commitments which include: (i) limitation of acquisitions rights of American movies and American series and French films, (ii) separate negotiation for pay TV and free-to-air TV rights from movies and series, (iii) limitation of acquisitions by Direct 8 and Direct Star of the catalog of films of StudioCanal and (iv) the sale of the free-to-air broadcasting rights of important sporting events.

All of these commitments were undertaken by the merging parties for a five-year term.