Advocate General opines on General Court judgments in the GIS cartel. On 19 September 2013, Advocate General Paolo Mengozzi handed down his opinions on appeals against General Court judgments in actions related to the Gas Insulated Switchgear cartel (Case No 38899). The AG has recommended that the European Court of Justice (ECJ) partially annul the judgments. In the appeals brought by Areva and Alstrom, the AG opined that the General Court had erred in taking the view that, in the absence of a contrary indication by the European Commission (Commission), a fine imposed jointly and severally on a number of companies should be attributed to them in equal measure. According to the AG, the correct approach would be to share the fine amongst the two parent companies in proportion to the respective durations of their infringement (Joined Cases C–427/11 and C–253/11). In appeals brought by the Commission and Siemens, the AG considered that General Court had erred in holding that it is for the Commission only to determine the payment responsibilities of different undertakings on whom fines have been jointly and severally imposed (Joined Cases C–231/11, C–232/11 and C–233/11).
General Court hands down judgments on Spanish bitumen cartel. On 16 September 2013, the General Court handed down five judgments on appeals against the Commission decision in the Spanish bitumen cartel (Case No 38710). The General Court found that the Commission had failed to establish that Galp Energia or Nynas Petroleum had participated in certain aspects of the infringement and reduced their fines by 4% and 2%, respectively (Cases T–462/07 and T–482/07). Appeals by PROAS, Repsol and CEPSA were dismissed in their entirety (Cases T 495/07, T–496/07 and T 497/07).
General Court hands down judgments in bathroom fixtures and fittings cartel. On 16 September 2013, the General Court handed down thirteen judgments on appeals against the Commission decision in the bathroom fixtures and fittings cartel (Case No 39092). The General Court reduced the fine imposed on Wabco on the basis that the Commission had failed to take account of the partial immunity granted to the company (Case T–380/10). The General Court found that the Commission had erred in its assessment of the Sanitec/Keramag group’s participation in aspects of the infringement (Joined Cases T–379/10 and T–381/10) and the Roca group received a reduction on the basis that the Commission had failed to take account of the group’s co-operation during the proceedings (Case T–412/10). The Commission decision was partially annulled insofar as it related to Duravit (Case T–364/10) and Villeroy & Boch, (Joined Cases T–373/10, T–374/10, T–382/10 and T–402/10) though the General Court did not reduce the fines imposed. Finally, the General Court reduced the fine imposed on Roca Sanitario in its capacity as a parent (Case T–408/10). Appeals by Masco Corp. (Case T–378/10), Mamoli Robinetteria (Case T–376/10), Zucchetti Rubinetteria (Case T–396/10), Rubinetteria Cisal (Case T–396/10), Aloys F. Dornbracht (Case T–386/10), Hansa Metallwerke (Case T–375/10) and Laufen Austria (Case T–411/10) were dismissed in their entirety (see ECJ Press Release 108/13).
General Court hands down judgments in paraffin waxes cartel. On 13 September 2013, the General Court handed down judgments in appeals by Total SA and its subsidiary, Total Raffinage Marketing (formerly Total France SA), against the Commission decision in the paraffin waxes and slack wax cartel (Case No 39181). The General Court reduced the fine imposed on Total Raffinage Marketing on the basis that the Commission decision had breached the principles of proportionality and equal treatment related to the duration of Total Raffinage's participation in the cartel (Case T–566/08). The General Court rejected the appeal by Total SA in its entirety (Case T–548/08).
ECJ rejects appeal against General Court judgment rejecting abuse complaint. On 19 September 2013, the ECJ ruled on an appeal by the European Federation of Ink and Ink Cartridge Manufacturers (EFIM) against a General Court upholding the decision by the Commission to reject a complaint by EFIM that various ink-jet printer OEMs and printer suppliers had breached Article 102 TFEU. The General Court confirmed that the Commission had been entitled to conclude that there was insufficient EU interest in the complaint (Case C–56/12).
ARTICLE 101/102 TFEU PROCEDURE
ECJ dismisses Commission appeal against interim measures related to the publication of the decision in Car Glass. On 10 September 2013, the ECJ dismissed an appeal by the Commission relating to interim measures granted by the General Court preventing the publication of a second (more complete) public (non-confidential) version of the Commission decision in the car glass cartel (COMP/39125) (see Volume 1, Issue 20). The ECJ concluded that the damage resulting from the publication of the alleged confidential information contained within that decision would be serious and irreparable (Case C–278/13 – Order of the Vice President of the Court, 10 September 2013).
General Court dismisses Deutsche Bahn dawn raid appeal. On 6 September 2013, the General Court rejected appeals by Deutsche Bahn related to dawn raids carried out by the Commission in proceedings to investigate abuse of dominance allegations (Case No 39678 and see Volume 1, Issue 40). The General Court held that the Commission did not require prior judicial authorisation to access the business premises. The General Court also dismissed the appellants’ argument that the dawn raid amounted to a “fishing expedition” due to the disproportionately wide and generic description of the subject matter in the inspection decision (Joined Cases T–289/11, T–290/11 and T–521/11).
General Court upholds Commission decision to refuse disclosure of Dutch bitumen cartel decision. On 13 September 2013, the General Court handed down its judgment on an appeal by The Netherlands related to the refusal by the Commission to disclose the full version of the Commission decision in the Dutch bitumencartel (Case No 38456). The General found that the Commission was entitled to rely on Article 4(2) of Regulation 1049/2001, pursuant to which access may be refused if it would undermine the commercial interests of a natural or legal person or the purpose of an investigation. The General Court held that there was no overriding public interest in disclosure, as the stated purpose of the disclosure was to assist private damages claimants (Case C–380/08).
Phase I Clearance
- M.6949 — JP Morgan / Findus (simplified review) (09.09.2013).
- M.6950 — UPC / GPT / JV (simplified review) (16.09.2013).
- M.6960 — SNFC / COMSA-EMTE / CRT (simplified review) (16.09.2013).
- M.6990 — Vodafone / Kabel Deutschland (IP/13/853) (20.09.2013).
- M.7013 — Platinum Equity / CBS Outdoor (simplified review) (10.09.2013).
- M.7027 — Bregal / ISG Holdings (simplified review) (13.09.2013).
OFT issues statement of objections to sports bra supplier and UK department stores. On 20 September 2013, the Office of Fair Trading issued a statement of objections to a manufacturer of sports bras and three UK department stores alleging that they entered into resale price maintenance agreements which specified the resale price of the products (Press Release 64/13).
UK MARKET INVESTIGATIONS
OFT agrees reforms to UK defined contribution pensions market. On 19 September 2013, the OFT published its market study report on defined contribution workplace pensions. The OFT has secured the agreement of The Pensions Regulator (TPR) and the Association of British Insurers (ABI) on a set of reforms designed to tackle the problems identified (Press Release 63/13).
Financial Conduct Authority to conduct a market study into the UK cash savings market. On 9 September 2013, the Financial Conduct Authority (FCA) announced plans to conduct a market study to assess the competitive conditions of the UK cash savings market. The FCA will examine the use of introductory “teaser” rates offered to new customers and consumer switching patterns (FCA Press Release).
On 19 September 2013, the OFT accepted the following hold separate undertakings:
- ME/6153/13 — Hargreaves Surface Mining Limited / Scottish Coal Company Limited.
OFT publishes advice on the impact on competition of the RBS/Lloyds divestments. On 11 September 2013, the OFT published its advice, as requested by the Chancellor of the Exchequer, concerning the impact on competition of the divestments by The Royal Bank of Scotland and Lloyds Banking Group as required by the Commission under EU State aid rules (OFT letter dated 11 September 2013).
CONSULTATIONS AND SPEECHES
BIS publishes second consultation on aspects of the Enterprise and Regulatory Reform Act 2013. On 17 September 2013, the Department for Business, Innovation & Skills (BIS) published its second consultation on draft secondary legislation to implement aspects of the Enterprise and Regulatory Reform Act 2013 reforms (BIS Press Release).
OFT publishes response to the Draft Consumer Rights Bill. On 16 September 2013, the OFT published its response to the consultation by BIS on the draft Consumer Rights Bill. This includes comments related to government proposals to make the competition private actions regime more effective (OFT 1502).
Speech by CAT President, Sir Gerald Barling. Reforming the UK Competition Regime – assessing the impact of new legislation and challenges ahead for the CMA (10 September 2013).
Speech by FCA Director of Policy, Risk and Research, Christopher Woolard. Competition and conduct regulation in financial services (9 September 2013). This speech was also reported in the Winston & Strawn London Fortnightly Financial Newsletter (Volume 1, Issue 19).
Speech by OFT Executive Director, Enforcement and Mergers, Sonya Branch. Enforcement Investigations – now and under the new regime (2 July 2013).
Organisation for Economic Co-operation and Development (OECD) paper on vertical restraints for on-line sales (Vertical Restraints for On-line Sales 2013).
Speech by Vice President of DG Commission, Joaquín Almunia. EU competition policy and innovation(SPEECH/13/697).
Commission Implementing Regulation (EU) No 880/2013 (OJ L 245/7, 14.9.2013) amending Annex I to Council Regulation (EC) No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with the Al-Qaida network. The Implementing Regulation removes a designated person from Annex I.
On 6 September 2013, the General Court annulled EU restrictive measures on Good Luck Shipping LLC, a shipping agency based in Dubai, on the basis of insufficient evidence (Case T–57/12–Good Luck Shipping LLC v Council of the European Union, judgment delivered on 6 September 2013).