Antitrust and Competition – The EU Weekly Briefing

DOMINANCE

European Commission market tests Deutsche Bahn traction current pricing commitments. The European Commission (Commission) has invited comments on commitments proposed by Deutsche Bahn (DB) concerning its pricing system for traction current (electricity used to power locomotives) in Germany (Case No. 39678). The Commission has concerns that DB’s pricing system may created a margin squeeze on the German long distance passenger rail transport and rail freight markets in breach of Article 102 TFEU. To dispel these concerns, DB has offered to introduce a new pricing system that would apply uniformly to all railway companies. The commitments would apply as from 2014 for five years (IP/13/78).

EU MERGERS

Phase I Clearance

• M.6903 – RWA / GENOL (simplified review) (MEX/13/0823).
  
• M.6947 – Antalis / Xerox Western Europe Paper Distribution Business (14.08.2013) (MEX/13/0816).
  
• M.6956 – Telefónica / CaixaBank / Banco Santander / JV (14.08.2013) (IP/13/781).
  
• M.6971 – Warburg Pincus / General Atlantic / Santander / Santander Asset Management (simplified review) (MEX/13/0823).
• M.6973 – AXA PE / Fosun / Club Mediterranée (19.08.2013).
  
• M.6988 – CKH / CKI / PAH / AVR (16.08.2013) (MEX/13/0819) (simplified review).
  
• M.6997 – TowerBrook Capital / Metallum (simplified review) (MEX/13/0823).
  
• M.6998 – Carlyle Group / Chesapeake Paperboard Business (12.08.2013) (simplified review) (MEX/13/0813).
  
• M.6999 – SPIE S.A. / HOCHTIEF Service Solutions (simplified review) (MEX/13/0823).
  
• M.7001 – Carlyle Group / Klenk Holz AG (21.08.2013) (simplified review).
  

UK ANTITRUST

Competition Appeal Tribunal lifts stay in Deutsche Bahn damages action. On 15 August 2013, the Competition Appeal Tribunal (CAT) lifted the stay in relation to claims by UK claimants against the defendants (other than Morgan Crucible) in a damages action related to the carbon and graphite cartel (Case No 38359). The action was previously stayed pending an appeal by Morgan Crucible to the Supreme Court related to the issue of whether the claims had been brought within the limitation period. In this case, Morgan Crucible is the “anchor defendant” for the purposes of establishing whether the CAT has jurisdiction to consider the damages actions against the other defendants. However, the UK claimants argued that, regardless of this, jurisdiction against the defendants (other than Morgan Crucible) could be established on the basis of Article 5(3) of the Brussels Regulation. The CAT agreed, finding that the UK claimants had a “good arguable” case that some damage resulting from the cartel was actually suffered in the UK (Case No. 1173/5/7/10).

UK MERGERS

Competition Commission invites evidence on IMS Health undertakings. The Competition Commission (CC) has invited evidence on whether behavioural undertakings given by IMS Health Incorporated (IMS) in 1999 following IMS's acquisition of Pharmaceutical Marketing Services Inc. should be released. In January 2013, IMS requested that the UK Office of Fair Trading (OFT) review the undertakings due to the fact that, since December 2011, the UK government has published GP prescription data free of charge resulting in new entry. The OFT has advised the CC that there has been a change of circumstance, but that the effect on new entry was unclear based on the available evidence (CC Press Release) (see Volume 1, Edition 12).

Competition Commission publishes provisional findings in Cineworld / City Screen merger. On 20 August 2013, the CC published provisional findings, together with a Notice of possible remedies, in its investigation into the completed acquisition by Cineworld plc (Cineworld) of City Screen Limited (CC Press Release). The CC has provisionally concluded that the acquisition could lead to a substantial lessening of competition (SLC) in three areas – Aberdeen, Bury St Edmunds and Cambridge. The CC has invited responses on the potential remedies, which include the divestment by Cineworld of cinemas in the three areas (see Cineworld / City Screen merger inquiry) (see Volume 1, Editions 26 and 32).

UK SANCTIONS

On 14 August 2013, HM Treasury published an updated version of its frequently asked questions (FAQs) on financial sanctions. The updated FAQs contain new questions regarding, among other issues, how designated persons may use their assets and providing sector specific advice for financial institutions, insurers, charities and law firms.