Antitrust and Competition – The EU Weekly Briefing

ANTITRUST

ECJ dismisses Quinn Barlo appeal in methacrylates cartel. On 30 May 2013, the European Court of Justice (ECJ) dismissed an appeal by Quinn Barlo Ltd, Quinn Plastics NV and Quinn Plastics GmbH (together Quinn) related to the 2006 decision of the European Commission (Commission) on the acrylic glass (methacrylates) cartel (COMP/38645). The General Court had upheld Quinn’s appeal in part, granting a slight reduction to the fine imposed (Case T–208/06). In its judgment, the ECJ rejected as inadmissible Quinn’s argument that the application of the legal test related to Quinn’s failure to distance itself from cartel meetings was ‘inappropriate’. In addition, the General Court did not err in its assessment of the duration of the infringement but rather adopted an approach favourable to the appellants (Case C–70/12 P - Quinn Barlo Ltd, Quinn Plastics NV and Quinn Plastics GmbH v European Commission, judgment of 30 May 2013).

Advocate General delivers Opinions in industrial bags cartel appeals. On 30 May 2013, Advocate General Sharpston delivered her opinions in the separate appeals by Groupe Gascogne SA (Groupe Gascon), Gascogne Sack Deutschland GmbH (GSD) and Kendrion NV (Kendrion) related to the 2005 Commission decision on the industrial bags cartel (COMP/38354). Advocate General Sharpston concludes that each applicant’s fundamental right to have its case heard by the General Court within a reasonable time has been infringed, but that a separate action for damages in the General Court would constitute a more appropriate and effective remedy than some reduction in the level of fine. Advocate General Sharpston also considers that the ECJ should set aside the General Court’s judgment against GSD (Case C–40/12 P), insofar as it dismissed the company’s appeal contesting the basis upon which the Commission calculated the fine for the period prior to its acquisition by Groupe Gascon. In the view of Advocate General, the 10 per cent ceiling applied to a period of infringement during which a subsidiary alone is responsible should be set by reference to that subsidiary’s turnover alone. Accordingly, the relevant fine for the period preceding Groupe Gascogne’s acquisition of GSD should be reduced to € 2,078,400 (from € 3.3 million). The Advocate General recommended that the appellants’ other grounds of appeal be dismissed (Case C–58/12 P - Groupe Gascogne SA v European Commission, Case C–40/12 P - Gascogne Sack Deutschland GmbH, formerly Sachsa Verpackung GmbH v European Commission and Case C-50/12 P - Kendrion v European Commission, Advocate General’s Opinions of 30 May 2013).

Ziegler Relocation brings additional damages claim against European Commission in relation to international removal services cartel. On 25 May 2013, details were published in the Official Journal of a claim by Ziegler Relocation SA (Ziegler Relocation), which is part of the Ziegler SA (Ziegler) group, for compensation for loss suffered following the decision of the Commission adopted in the International Removal Services cartel (COMP/38543). In March 2008, the Commission imposed fines totalling €32.7 million on Ziegler and other providers of international removal services in Belgium for fixing prices, sharing the market, and bid rigging contrary to Article 101 TFEU (IP/08/415). According to the Decision, the cartel operated from 1984 until 2003. Ziegler Relocation has provided removal services since December 2003 (the services were previously provided by a division of Ziegler). Similar to Ziegler, Ziegler Relocation is seeking a ruling that the Commission has incurred the non-contractual liability of the EU and should pay it the sum of €112 872,50 per year from 11 March 2008, together with interest until payment in full. Ziegler has requested that the General Court join the action to Case T-539/12 (see Volume 1, Edition 17) (Case T-150/13 – Ziegler Relocation v Commission, Action brought on 11 March 2013).

DOMINANCE

Commission sends Statement of Objections to Romanian Power Exchange OPCOM. On 30 May 2013, the Commission announced that it has sent a Statement of Objections (SO) to the Romanian Power Exchange, OPCOM S.A., and its parent company, CNTEE Transelectrica S.A. (IP/13/486). The Commission has formed the preliminary view that OPCOM’s business practice of requiring OPCOM’s power exchange spot market participants to hold a Romanian VAT registration may be contrary to Article 102 TFEU. According to the Commission, this requirement discriminates against foreign traders, and the related increased costs may deter them from entering the Romanian electricity wholesale market (39984 OPCOM / Romanian Power Exchange). The Commission opened the investigation in December 2012 (see IP/12/1355 and Volume 1, Edition 8).

UK ANTITRUST

Animal Feed Phosphates damages claim stay extended by CAT. On 29 May 2013, the Competition Appeal Tribunal further extended the stay of a follow-on damages claim brought by Moy Park Limited and others against Tessenderlo Chemie N.V. for damages related to the Animal Feed Phosphates cartel (COMP/38866) (Case No: 1202/5/7/12, Moy Park Limited & Others v Tessenderlo Chemie NV) (see Volume 1, Edition 22).

CAT orders further stay in Siemens and Capital Meters damages actions against National Grid. On 30 May 2013, the CAT published an order staying damages actions brought by Siemens plc (Case No. 1198/5/7/12) and Capital Meters Limited (Case No. 1199/5/7/12) under section 47A of the Competition Act 1998 against National Grid plc until 21 June 2013. The claims are based on the 2008 Ofgem finding that National Grid abused its dominant position in the market for the provision of domestic-sized gas meters contrary to the Chapter II Prohibition and Article 102 TFEU (30 May 2013 - Order of the Chairman).

EU MERGERS

Phase I Clearance

• M.6813 – McCain Foods Group / Lutosa Business (27.05.2013) (subject to conditions).
  
• M.6876 – Sumitomo Electric Industries / Anvis Group (24.05.2013) (MEX/13/0527).
  
• M.6914 – Possehl / Cookson European Precious Metals Business (24.05.2013) (MEX/13/0527) (simplified review).
  
• M.6896 – SPAR / Allianz / JV (28.05.2013) (simplified review).
  

Phase II Clearance

Commission approves Syniverse / MACH subject to conditions. The Commission has approved the proposed acquisition of Mach by Syniverse under the EU Merger Regulation (IP/13/481). The approval, which follows an in-depth (Phase II) investigation (IP/12/1439), is conditional upon the divestiture of Mach’s Data Clearing (DC) and Near Trade Roaming Data Exchange (NRTRDE) services in the EEA. The Commission had concerns that the proposed merger – which would have combined the first and the second largest supplier – would have allowed Syniverse to raise prices or to decrease the quality of DC and NRTRDE services (M.6690).

UK MERGERS

Competition Commission provisional findings indicate Ryanair faces having to reduce its shareholding in Aer Lingus. On 30 May 2013, the Competition Commission (CC) published a summary of its provisional findings in its Ryanair / Aer Lingus inquiry (CC Press Release). The CC has provisionally concluded that Ryanair’s 29.8 per cent stake in Aer Lingus (the minority shareholding) gives Ryanair the ability to influence the commercial policy and strategy of Aer Lingus and could reduce competition on routes between Great Britain and the Republic of Ireland. The CC has also published a notice of possible remedies which seeks views on how much of the minority shareholding Ryanair should be required to divest, should the CC’s provisional findings be confirmed. The CC is expected to publish its final report by 11 July 2013 (see Volume 1, Edition 18).

Competition Commission publishes issues statement in Cineworld / City Screen merger. On 29 May 2013, the Competition Commission (CC) published an issues statement in its investigation into completed acquisition by Cineworld plc of City Screen Limited (CC Press Release). The CC will first determine whether there is a “relevant merger situation” to establish jurisdiction, and then consider whether the completed acquisition has resulted, or may be expected to result, in an SLC in the UK.

The issues statement identifies three theories of harm: first, unilateral horizontal effects at a local level following the removal of one competitor in 10 (preliminary) catchment areas; second, unilateral effects at a local level due to the loss of a potential competitor leading to reduced competitive pressure; and third, unilateral effects at a local level in non-overlap areas relating to service agreements. The CC does not currently intend to investigate the possibility of the merger increasing the likelihood of coordinated effects (Cineworld / City Screen merger inquiry) (see Volume 1, Edition 26).

SPEECHES / PUBLICATIONS

Vice President of the European Commission, Joaquín Almunia, presents the Annual Competition Report for 2012. On 28 May 2013, Mr. Joaquín Almunia presented the Annual Competition Report for 2012 to the European Parliament (SPEECH/13/474). In particular, Mr. Almunia referred to the Commission’s “antitrust damages initiative” which will apparently be submitted to the College of Commissioners in the coming weeks. The initiative has two stated objectives: first, to enable victims of competition-law infringements to obtain compensation more effectively; and second, to optimise the relationship between the public and private enforcement of EU competition rules (IP/13/472) (see Volume 1, Edition 28).

Speech by Director-General for Competition, Alexander Italianer: ‘Competition policy for consumers’ and citizens’ welfare’ (24 May 2013).

SANCTIONS

Belarus
Council Implementing Regulation (EU) No 494/2013 (OJ L 143/1, 30.05.2013) amending Regulation (EC) No 765/2006 concerning restrictive measures in respect of Belarus. The Implementing Regulation removes one designated person from Annex I.

Libya
Council Regulation (EU) No 488/2013 (OJ L 141/1, 28.05.2013) amending Regulation (EU) No 204/2011 concerning restrictive measures in view of the situation in Libya. Council Regulation (EU) No 488/2013 amends the exemptions to the arms embargo.