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Volume 3, issue 51 |
Tuesday 29 December 2015 |
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Dear Clients and Friends,
As this is the last Winston & Strawn EU Weekly Briefing of 2015, we would like to take this opportunity to thank you for taking the time to read our briefings this past year.
Best wishes for a happy and successful 2016 from the Winston & Strawn EU competition team! |
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| Summary of parking heaters cartel decision published. On 18 December 2015, the Official Journal of the European Union published a summary of the European Commission’s (Commission) June 2015 decision on the parking heaters cartel. The Commission decided that the two German companies had infringed Article 101 of the Treaty on the Functioning of the European Union (TFEU) and Article 53 of the EEA Agreement between 2001 and 2011. In particular, the Commission found that both companies had co-ordinated prices and allocated supplies of parking heaters for cars and trucks. One of the companies received complete immunity from fines under the Commission’s Leniency Notice, while the other was fined €68,175,000. |
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Phase I Mergers |
- M.7737 HONEYWELL / ELSTER (21 December 2015)
- M.7872 NOVARTIS / GSK (21 December 2015)
- M.7795 RATOS / VARMA / REAL ESTATE JV (21 December 2015)
- M.7834 SUMITOMO CORPORATION / SUMITOMO MITSUI BANKING CORPORATION / PT SUMMIT OTO FINANCE / PT OTO MULTIARTHA (21 December 2015)
- M.7829 TRANSGOURMET / C+C PFEIFFER (22 December 2015)
- M.7875 ICG / CAPITON / PREFERE RESINS HOLDING (23 December 2015)
- M.7838 DSV / UTi WORLDWIDE (23 December 2015)
- M.7814 ENGIE / SOPER / LA COMPAGNIE DU VENT / LA CAISSE DES DEPOTS ET CONSIGNATIONS / CEOLCBH60 / CEOLCHA51 / CEOLAUX89 (23 December 2015)
- M.7837 THE GOLDMAN SACHS GROUP / THE WELLCOME TRUST (23 December 2015)
- M.7867 KKCG / FOXCONN / JV (23 December 2015)
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| Commission approves additional aid to support resolution of Portuguese bank, Banif, and sale of assets. On 21 December 2015, the Commission announced that it has decided, under EU State aid rules, to approve the grant of additional State aid, amounting to approximately €3 billion, to cover a funding gap in the resolution of the Banco Internacional do Funchal S.A (Banif), and to enable the sale of assets to Banco Santander Totta. In the context of the resolution of the bank, it has also approved restructuring aid amounting to approximately €1.1 billion, which was temporarily approved in 2013. |
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| Commission asks Greece to better target its support measures in maritime sector. On 21 December 2015, the Commission announced that it has requested Greece to amend its tonnage tax system and related support measures in the maritime sector to ensure it complies with EU State aid rules. The current Greek system has been in place since prior to Greece’s accession to the EU, and so is classified as “existing aid”. In particular, the Commission is concerned that the Greek system allows shareholders of shipping companies to benefit from favourable tax treatment that should be reserved for maritime transport providers. If Greece accepts the proposed measures, the Commission will confirm this in a separate State aid decision. Failing an agreement, the Commission may open a formal State aid investigation. |
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| CMA encourages responses to Commission consultation on empowering national competition authorities. On 21 December 2015, the Competition and Markets Authority (CMA) issued an announcement encouraging responses to the Commission’s consultation on empowering national competition authorities (NCAs) to be more effective enforcers. In November 2015, the Commission launched a consultation on how to ensure that NCAs can act independently when enforcing EU competition rules and have the resources needed to do their work; have an adequate competition toolbox to detect and tackle infringements; can impose effective fines; and have effective leniency programmes. The deadline for responding to the Commission’s consultation is 12 February 2016. |
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| First fast track, stand-alone damages action and application for injunction brought before the CAT. On 22 December 2015, the Competition Appeal Tribunal (CAT) published a notice of a claim for damages brought under section 47A of the Competition Act 1998 by NCRQ Ltd against a health and safety membership organisation, the Institution of Occupational Safety and Health (IOSH). NCRQ claims that IOSH has abused a dominant position in breach of the Chapter II prohibition of the Competition Act 1998 and Article 102 of the TFEU by refusing to accredit its qualification of a diploma in applied health and safety, restricting competition in the downstream market for the provision of training leading to qualifications in health and safety. NCRQ is seeking an injunction to restrain IOSH from continuing this abuse; a declaration that IOSH has abused its dominant position; and damages. NCRQ has applied for designation of the proceedings under the new fast track procedure. It has also applied for an interim injunction, a hearing for which will be held on 12 and 13 January 2016. |
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| Action by Peugeot for damages resulting from car glass cartel lodged in CAT. On 22 December 2015, the CAT published a notice of a claim for damages under section 47A of the Competition Act 1998 brought by Peugeot Citroën and others against Pilkington Group Limited and Pilkington Automotive Limited. This is a follow-on damages action based on the Commission’s 2008 decision on the car glass cartel, in which it found that the Pilkington entities had infringed Article 81 of the EC Treaty and Article 53 of the EEA Agreement by participating in a complex of agreements and/or concerted practices in the automotive glass sector in the EEA. The claimants have also brought an action in the High Court. This follow-on action has been brought on a precautionary basis in the event any of the claimants’ claims in the High Court are found to be time barred under any applicable law of limitation. |
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| Ofwat finds no grounds for action in Anglian Water margin squeeze investigation. On 22 December 2015, Ofwat published a summary of its “no grounds for action” decision in relation to its investigation into whether Anglian Water Services Limited (Anglian) infringed the Chapter II prohibition of the Competition Act 1998. In December 2011, Ofwat sent a statement of objections to Anglian alleging that Anglian imposed an illegal margin squeeze in relation to its pricing for providing water and sewerage services to a development site. However, Ofwat’s analysis led it to conclude that there was insufficient evidence of a margin squeeze in respect of water services alone, or water and sewerage services when considered on a combined basis. Therefore, in April 2014, Ofwat sent a supplementary statement of objections alleging a margin squeeze by Anglian in relation to the provision of sewerage services alone. Following further analysis of evidence, Ofwat found that, in this case, the developer would have been highly reluctant to appoint separate companies to provide water and sewerage services. Ofwat, therefore, concluded that there was insufficient evidence to find that any margin squeeze in respect of sewerage services (or water services) on its own would have generated actual or potential anti-competitive effects sufficient to justify a finding of abuse. |
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| CMA memorandum of understanding on competition concurrency with FCA and PSR. On 22 December 2015, the CMA announced that it has signed memorandum of understandings (MoU) with two regulators, the Financial Conduct Authority (FCA) and the Payment Systems Regulator (PSR). The MoUs set out arrangements relating to the allocation of cases; the sharing of information and confidentiality constraints; and the pooling of resources in relation to these powers, which are held concurrently by the CMA and those regulators respectively. |
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