Antitrust and Competition – The EU Weekly Briefing

CARTELS

ECJ rules that Commission can claim cartel damages in the national courts. In June 2008, the European Union (EU), represented by the Commission, brought proceedings before the Brussels Commercial Court seeking damages in respect of the loss sustained by it as a result of the anti-competitive conduct established by the Commission in the Elevators and Escalators cartel (Case COMP/38.823); in other words, in its capacity as a consumer of the products that were the subject of that cartel. On 6 November 2012, the ECJ held that the fundamental rights of the defendants, as safeguarded inter alia by the Charter of Fundamental Rights of the European Union, did not prevent the Commission from bringing a follow-on damages claim on behalf of the EU, and that it was not “judge and party in its own cause” (Case C–199/11, EC v Otis NV and others, Judgment of 6 November 2012).

DOMINANCE

German FCO investigates Deutsche Post over margin squeeze. On 5 November 2012, the Germany Federal Cartel Office (FCO) announced that it had opened an abuse of dominance investigation of Deutsche Post. The FCO expressed concerns that prices charged by Deutsche Post to major customers are below-cost (Press Release).

MERGERS

ECJ delivers judgments on Lagardère purchase of Vivendi assets. In 2004, the Commission approved the purchase by Lagardère of the assets of Vivendi Universal Publishing subject to conditions, which included the divestiture of certain assets (the “divestiture assets”) (COMP/M.2978, Commission Decision of 7 January 2004). On 6 November 2012, the ECJ handed down two judgments related to the sale which form part of a series of actions brought the various parties involved. First, the ECJ dismissed an appeal by Éditions Odile against a judgment of the General Court, which upheld the 2004 Commission Decision (Case C–551/10 P, Éditions Odile Jacob v Commission, Judgment of 6 November 2012). In a second judgment, the ECJ upheld the annulment by the General Court of the Commission’s approval of Wendel Investissement as purchaser of the divestiture assets. The ECJ held that the General Court had not erred in finding that the trustee did not satisfy the condition of independence, and that this was sufficient grounds for annulment (C–553/10 P and C–554/10 P, Commission v Éditions Odile Jacob, Judgment of 6 November 2012).

Phase I Clearance

• M.6564 – ARM/Giesecke & Devrient/Gemalto/JV (with conditions) (07.11.2012, IP/12/1181).
  
• M.6675 – GE/Accenture/Taleris (EXME 09.11.2012).
  
• M.6686 – Terex/GAZ/JV (EXME 09.11.2012).
  

Phase II Clearance

• M.6471 – Outokumpu/Inoxum (with conditions) (07.11.2012, IP/12/1185).
  

PUBLICATIONS/EVENTS

Commission establishes expert group to examine biotechnology patent law. The expert group will examine the implications of patent law in the field of biotechnology and genetic engineering (C(2012) 7686 final) and provide the Commission with legal and technical expertise in the context of the application of Directive 98/44/EC on the legal protection of biotechnological inventions.

Almunia speech on EC merger policy: “Past evolution and future prospects”. The European Commissioner for Competition, Joaquin Almunia, delivered a speech at the Conference on Competition Policy, Law and Economics (SPEECH/12/773, 02.11.2012).

ECJ publishes recommendations on preliminary rulings under Article 267 TFEU. These recommendations follow the new ECJ Rules of Procedure adopted in September 2012, and replace the Information Note published in 2011 (OJ C 338/1, 06.11.2012).

STATE AID

Commission extends in-depth investigation into Italian measures for Tirrenia Group. On 7 November 2012, the Commission extended the scope of an in-depth investigation opened in October 2011 into public support measures in favour of companies of the former Tirrenia Group (IP/12/1184, 07.11.2012).

EU ECONOMIC SANCTIONS UPDATES

Belarus

Council Regulation (EU) No 1014/2012 and Council Implementing Regulation (EU) No 1017/2012 of 6 November 2012 amending Council Regulation (EC) No 765/2006 concerning restrictive measures in respect of Belarus of 18 May 2006. The amendments clarify the criteria for designating natural or legal persons and consolidate that list.

Iran

Council Implementing Regulation (EU) No 1016/2012 of 6 November 2012 amending Council Regulation (EU) No 267/2012 concerning restrictive measures against Iran. The amendment reflects the listing of an additional entity to the list of designated persons/entities.

Terrorist Financing

Council Implementing Regulation (EU) No 1015/2012 of 6 November 2012 amending Council Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism. The amendment reflects the removal of one individual from the list of designated persons/entities.