Antitrust and Competition – The EU Weekly Briefing

ARTICLE 101 TFEU

ECJ rules that neither legal advice nor NCA decisions will exempt a company from competition law infringements or fines. On 18 June 2013, the European Court of Justice (ECJ) handed down its ruling on a preliminary reference from the Austrian Supreme Court. The first question posed by the Austrian Supreme Court asked whether a company which has infringed EU competition law may escape the imposition of a fine where that company had relied upon legal advice given by a lawyer or a decision of a national competition authority (NCA). According to the ECJ, the fact that a company has characterised its conduct wrongly in law cannot have the effect of exempting it from imposition of a fine save in exceptional cases, such as where the principle of the protection of legitimate expectations precludes the imposition of a fine. Legal advice given by a lawyer cannot form the basis of a legitimate expectation on the part of a company. Similarly, since NCAs do not have the power to adopt a decision concluding that there is no infringement of EU law, neither can they cause companies to entertain a legitimate expectation that their conduct does not infringe the competition rules. The ECJ also ruled that NCAs may only by way of exception confine themselves to finding an infringement without imposing a fine, such as where a company’s cooperation has been decisive in detecting and actually suppressing the cartel (Case C-681/11 - Bundeswettbewerbsbehörde, Bundeskartellanwalt v Schenker & Co. and Others, Judgment of 18 June 2013) (ECJ Press Release 73/13).

General Court rejects appeals in aluminium fluoride cartel. On 18 June 2013, the General Court handed down judgments on two actions related to the 2008 European Commission Decision in the aluminium fluoride cartel (COMP/39180). The General Court found that the appeal brought by Fluorsid SpA (Fluorsid) and Minmet Co (Minmet), in so far as it was directed against the decision addressed to Minmet, was inadmissible on account of it having been brought out of time. The General Court rejected the remainder of Fluorsid/Minmet’s appeal (Case T-404/08 - Fluorsid and Minmet v Commission, Judgment of 18 June 2013). In the second judgment, the ECJ rejected the appeal brought by Industries Chimiques du Fluor SA (ICF) in its entirety (Case T-406/08 - ICF v Commission, Judgment of 18 June 2013).

European Commission fines Lundbeck and other pharmaceutical companies for ‘pay for delay’ agreements. On 19 June 2013, the European Commission (Commission) announced that it has imposed fines on Lundbeck (EUR 93.8 million) and on Alpharma, Merck KGaA/Generics UK, Arrow and Ranbaxy (totalling EUR 52.2 million), all producers of generic medicines, for preventing market entry of generic equivalents of Lundbeck’s drug, citalopram. The Commission found that, in 2002, the generic producers agreed with Lundbeck not to enter the market in return for payments and other inducements from Lundbeck contrary to Article 101 TFEU (IP/13/563, SPEECH/13/553).

Commission confirms dawn raids in cargo train transport services sector. On 19 June 2013, the Commission confirmed that unannounced inspections were conducted at the premises of several companies active in the sector of cargo train transport services to South Eastern Europe on 18 June 2013 (MEMO/13/586).

EU MERGERS

Commission consults on possible improvements to EU Merger Regulation. The Commission has invited comment on a number of options for possible future improvements of the EU Merger Regulation in two areas: first, the acquisition of non-controlling minority shareholdings; and second, the transfer of cases between the Commission and NCAs. The Commission has published a Consultation Paper and invited comments until 12 September 2013 (IP/13/584).

Phase I Clearance

• M.6828 – Delta and Virgin Group / Virgin Atlantic (20.06.2013) (IP/13/587).
• M.6912 – Michael S. Dell / DELL Inc. (MEX/13 /21.06) (simplified procedure).
• M.6921 – IBM Italia / UBIS (MEX/13/19.06).
• M.6943 – Triton / Befesa (17.06.2013) (MEX/13 /18.06) (simplified procedure).
  
  

UK ANTITRUST

Animal feed phosphates damages claim withdrawn from CAT. On 21 June 2013, the Competition Appeal Tribunal (CAT) granted Moy Park Limited and others permission to withdraw a follow-on damages claim brought 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, Issue 7).

CAT orders further stay in Siemens and Capital Meters damages actions against National Grid. On 19 June 2013, the Competition Appeal Tribunal (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) until 5 July 2013 (see Volume 1, Issue 30).

UK MERGERS

CAT upholds CC prohibition of AkzoNobel/Metlac merger. On 21 June 2013, the CAT unanimously dismissed all three of AkzoNobel’s grounds of review of the Competition Commission’s (CC) decision to prohibit the anticipated acquisition by AkzoNobel of Metlac Holding S.r.l. in January 2013 (see CC Inquiry) (Case No. 1204/4/8/13) (see Volume 1, Issue 12).

Global Radio appeals against Competition Commission’s divestment decision. On 18 June 2013, the CAT published a summary of an application by Global Radio Holdings Limited, under section 120 of the Enterprise Act 2002, for review of the CC’s decision to require it to divest radio stations following its acquisition of GMG Radio Holdings Limited (see Volume 1, Issue 29).

Groupe Eurotunnel appeals against Competition Commission’s prohibition decision. On 18 June 2013, the CAT published a summary of an application by Groupe Eurotunnel S.A. for review of the CC’s decision prohibiting it from operating Dover ferry services for a specified period (see Volume 1, Issue 31).

UK REGULATORY

UK DoH consultation on prices of branded NHS medicines. On 20 June 2013, the UK Department of Health (DoH) opened a consultation on proposed revisions to the statutory scheme controlling the prices of branded NHS medicines. The statutory scheme covers those companies that decide not to join, or withdraw from, the voluntary Pharmaceutical Price Regulation Scheme (PPRS). The proposals include introducing a new price adjustment on sales of branded drugs to the NHS, applying the price adjustment to average selling prices in hospitals, removing some of the current exemptions and introducing a small firms exemption in their place. The proposed draft regulations reflect the proposed changes and consolidate the existing regulatory provisions. The consultation closes on 31 July 2013.

UK BIS consultation on appeals framework for regulatory and competition decisions. On 19 June 2013, the UK Department for Business, Innovation & Skills (BIS) issued a consultation on regulatory and competition appeals, setting out the options for reform. The consultation closes on 11 September 2013 (Ref: BIS/13/876).

UK MARKET INVESTIGATIONS

OFT announces market study on SME banking. On 19 June 2013, the Office of Fair Trading (OFT) announced that it is consulting on a market study on competition in banking for small and medium-sized businesses (SMEs) (Press Release 43/13).

STATE AID

Commission adopts Guidelines on regional aid for 2014-2020. The Commission has adopted regional aid guidelines which set out the rules under which Member States can grant State aid to companies to support investments in the less advantaged regions of Europe or to extend or modernise existing facilities. The Guidelines will enter into force on 1 July 2014 (IP/13/569).

SPEECHES

Speech by Director General of DG Competition, Alexander Italianer: Competition Law within a framework of rights and the Commission’s proposal for a Directive on antitrust damage actions (Luxembourg, 14 June 2013).