Volume 1, Issue 9
Monday 7 January, 2013

Antitrust and Competition – The EU Weekly Briefing

Welcome to the first edition of The EU Weekly Briefing. We wish all of our clients, colleagues and friends a happy and successful 2013!

ARTICLE 101 TFEU

Commission to market test commitments offered by Air Canada, Continental Airlines, Lufthansa, and United Airlines. The European Commission (“Commission”) initiated formal antitrust proceedings in April 2009 related to a proposed joint venture for passenger services between Air Canada, Continental Airlines, Lufthansa and United Air Lines on all transatlantic routes between Europe and North America (COMP/39595). The airlines have jointly offered a set of commitments designed to facilitate the entry of competitors to alleviate the Commission’s antitrust concerns (IP/12/1445, 21.12.2012).

CARTELS

ECJ rejects appeals against General Court judgments on Italian Raw Tobacco cartel. In December 2012, the EU Court of Justice (“ECJ”) dismissed appeals by tobacco producers Alliance One International and Transcatab, against fines imposed by the Commission in 2005 related to the Italian Raw Tobacco cartel (COMP/38281). The ECJ dismissed the appeals as being, in part, inadmissible and, in part, unfounded, and declined to hear oral arguments (Joined Cases C-593/11 P, Alliance One International Inc v. European Commission and C-654/11 P, Transcatab v. Commission, Orders of the ECJ dated 13 December 2012).

ECJ rejects appeals against General Court judgments on Dutch beer cartel. In 2007, the Commission had imposed fines totalling more than €273 million on several Dutch brewers, including Heineken NV and Bavaria NV, for their participation in the Dutch Beer cartel (COMP/37766). On 19 December 2012, the ECJ dismissed appeals brought by Heineken and Bavaria against the June 2012 judgments of the General Court (Cases T-240/07, Heineken Netherland BV and Heineken v. Commission and T-235/07, Bavaria BV v. Commission), which had largely upheld the Commission’s decision (Cases C-445/11 P, Bavaria NV v. Commission and C-452/11 P, Heineken Nederland BV and Heineken NV v. Commission, judgments of 19 December 2012 (not yet available in English) (CJE/12/170).

UK High Court allows ‘conspiracy’ claim under Section 47A of Competition Act to continue. On 19 December 2012, the High Court gave a ruling on applications to strike out two follow-on damages claims based on the tort of conspiracy to use unlawful means. The damages actions were originally brought before the UK Competition Appeal Tribunal (“CAT”) under Section 47A of the Competition Act 1998 (Section 47A), but transferred to the High Court. The defendants argued that claims based on the tort of conspiracy to use unlawful means did not fall within Section 47A and should be struck out. The High Court ruled that Section 47 is “cause of action neutral” and that the determining criterion is the factual nature of the claim, that is, whether the claim is based on the established infringement. The High Court held that a claim that the defendants participated in a conspiracy to use unlawful means, namely the agreed entry into the Copper Plumbing Tubes cartel (COMP/38069), did fall within Section 47A and should not be struck out. However, another claim based on a broader alleged conspiracy did not fall within Section 47A as it was based on an agreement not covered by the Commission’s decision and was therefore struck out (WH Newson Holding Ltd and others v. IMI plc and others [2012] EWHC 3280 (Ch) judgment dated 19 December 2012).

UK CAT judgment on Tesco appeal against OFT Dairy Retail Price Initiatives decision. On 20 December 2012, the CAT handed down judgment on the liability aspect of an appeal brought by Tesco against the Office of Fair Trading (OFT) 2011 Dairy Retail Price Initiatives decision (Case CE/3094-03). The OFT found that, in both 2002 and 2003, a number of competing undertakings, including Tesco, had indirectly exchanged their future retail pricing intentions via their common suppliers (so-called “hub and spoke exchanges”). The OFT found that the ‘2002 Initiative’ and ‘2003 Initiative’ amounted to separate single overall concerted practices (“SCI”), comprising nine and five separate hub and spoke exchanges (referred to as “strands”) respectively. The CAT found that there was insufficient evidence to support the findings in the OFT Decision in respect of five of the strands comprising the ‘2002 Initiative’ and all those strands comprising the ‘2003 Initiative’. The CAT will now receive further submissions in order to determine whether the ‘2002 Initiative’ strands that were upheld are sufficient to amount to participation by Tesco in the ‘2002 Initiative’ SCI or whether those strands should be viewed as three separate infringements, as well as the fine imposed on Tesco (Case No: 1188/1/1/11 – (1) Tesco Stores Ltd (2) Tesco Holdings Ltd (3) Tesco Plc v Office of Fair Trading [2012] CAT 31, judgment dated 20 December 2012).

ARTICLE 102 TFEU

Commission issues Statement of Objections to Samsung alleging misuse of mobile phone essential patents. On 21 December 2012, the Commission announced that it sent a Statement of Objections (“SO”) to Samsung alleging that Samsung abused its dominant position, in breach of Article 102 TFEU, by seeking injunctive relief against Apple based on alleged infringements of certain of its standard essential patents for 3G mobile devices (MEMO/12/1021, 21.12.2012). Samsung provided a commitment to the European Telecommunications Standards Institute to licence any such standard essential patents on fair, reasonable, and non-discriminatory terms (FRAND) (IP/12/89, 31.01.2012).

Commission accepts legally binding commitments from Rio Tinto Alcan. The Commission had concerns about Rio Tinto Alcan contractually tying the licensing of its leading Aluminium Pechiney smelting technology to the purchase of handling equipment (namely, pot tending assemblies or “PTAs”) from its subsidiary, Electrification Charpente Levage (COMP/39230 – Rio Tinto Alcan). The commitments offered by Rio Tinto Alcan introduce an objective and non-discriminatory process for selecting qualified suppliers of PTAs from which users of Rio Tinto Alcan’s technology will be able to choose (IP/12/1434, 20.12.2012).

Commission accepts legally binding commitments from Thomson Reuters. The Commission had concerns about Thomson Reuters’ licensing practices which prevented customers from using Reuters Instrument Codes (RICs) to retrieve data from alternative data providers (COMP/39654 – Reuters Instrument Codes). The commitments offered by Thomson Reuters create a new licence (ERL) allowing customers, for a monthly fee, to use RICs for data sourced from Thomson Reuters’ competitors (IP/12/1433, 20.12.2012).

EU MERGERS

Phase I Clearance

  • M.6740 – BayWa / Cefetra (19.12.2012).
  • M.6754 – KM Holdings / KM Group (19.12.2012).
  • M.6755 – Bain Capital Investors / Apex Tool Group (18.12.2012) (simplified procedure).
  • M.6765 – PCC / Timet (IP/12/1416, 19.12.2012).
  • M.6766 – Migros / tegut-group (19.12.2012) (simplified procedure).
  • M.6785 – General Motors France / SSPF / Auto Distribution Provence (20.12.2012) (simplified procedure).
  • M.6790 – Mittal Investments / Certain UK assets of Anglo American and Lafarge (17.12.2012) (simplified procedure).
  • M.6791 – The Walt Disney Company / LucasFilm (21.12.2012).
  • M.6793 – AEA / OTPP / Dematic (20.12.2012) (simplified procedure).

Phase II Investigation opened

Phase II Clearance

UK MERGERS

NOTABLE DEVELOPMENTS IN OTHER JURISDICTIONS

Brazil

Administrative Council for Economic Defense (CADE) publishes draft rules on cartel and antitrust settlements (CADE Press Release, 14.12.2012).

PUBLICATIONS

Amicus curiae observations submitted to the Belgian national court related to tax deductibility of cartel fines. The observations were submitted in the context of a case concerning the question of whether or not cartel fines imposed by the Commission may be wholly or partially deductible from taxes (2012)227414, 8 March 2012). On 20 December 2012, the Belgian Constitutional Court held that allowing tax deductibility for fines imposed for the infringement of the EU competition rules would affect the effectiveness and the consistent application of the competition rules (Case No 5285 Tessenderlo Chemie NV v. The Belgian State).

Statement by DG Competition Joaquín Almunia on Commission Google investigation (SPEECH/12/967, 18.12.2012).

EU ECONOMIC SANCTIONS UPDATES

Iran
Council Regulation (EU) No. 1263/2012 (OJ L 356/34, 22.12.2012) amending Council Regulation (EU) No. 267/2012 concerning restrictive measures against Iran (as amended). Regulation (EU) No. 1263/2012 introduces additional financial measures and asset freezing provisions, including a new EU prohibition on transfers of funds between EU credit and financial institutions and Iranian banks (new Article 30). Article 30(1) provides that financial and credit institutions in the EU are prohibited from transferring funds to or from: (a) Iranian credit and financial institutions and bureaux de change, and their branches and subsidiaries, wherever located; and (b) credit and financial institutions and bureaux de change that are not domiciled in Iran but are controlled by persons, entities or bodies domiciled in Iran, unless such transfers are authorised in accordance Article 30.

Council Implementing Regulation (EU) No. 1264/2012 (OJ L 356/55, 22.12.2012) amending Annex IX to Council Regulation (EU) No. 267/2012. The Implementing Regulation lists additional Iranian designated persons/entities and replaces and/or deletes certain others.

Afghanistan
Council Implementing Regulation (EU) No. 1244/2012 (OJ L 352/14, 21.12.2012 amending Annex I to Council Regulation (EU) No. 753/2011. Annex I to the 2011 Regulation lists the persons, groups, and entities subject to the freezing of funds and economic resources provisions contained in Regulation (EU) No. 753/2011.

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