Winston & Strawn Antitrust and Competition - The EU Weekly Briefing, Volume 1, Issue 7

Volume 1, Issue 7
Monday 10 December 2012

Antitrust and Competition – The EU Weekly Briefing

ECJ reinstates fines imposed on Coppens in International Removals Services cartel. On 6 December 2012, the European Court of Justice (ECJ) held that the General Court had been wrong to annul the fine imposed on Coppens entirely (T-210/08, Verhuizingen Coppens v Commission, General Court judgment of 16 June 2011). In its judgment, the ECJ set a penalty for that part of the infringement for which there was sufficient proof of Coppens’ involvement; namely, its participation in the agreement on cover quotes. Accordingly, the EUR 104 million fine imposed by the Commission has been reduced to EUR 35 million (C-441/11, Commission v Verhuizingen Coppens, ECJ judgment of 6 December 2012, CJE/12/159).

General Court orders Commission to suspend transmission of GIS documents to the High Court of England and Wales pending Alstom appeal. The General Court has published an interim measures order suspending the operation of a Commission decision of 26 January 2012 (the contested decision) to transmit certain documents to the High Court of England and Wales (High Court) (T-164/12, Alstom v Commission, Order dated 29 November 2012). The documents, sought initially by National Grid Electricity Transmission plc as part of a follow-on damages action related to the Gas Insulated Switchgear (GIS) cartel (COMP/38899), comprise the confidential version of Alstom’s reply to the Statement of Objections (SO Reply) issued by the Commission in the GIS investigation. In April 2012, Alstom brought an action for annulment of the contested decision, and a separate application for interim measures seeking the suspension of the contested decision. In its judgment, the General Court granted Alstom’s request for interim measures and ordered that the Commission refrain from transmitting the confidential version of Alstom’s SO Reply until the main action is heard. The General Court will now be called upon to rule on whether the contested decision should be annulled, inter alia, for infringement of the obligation of professional secrecy protected by Article 339 TFEU.

Commission imposes fines of EUR 1,470 million on participants in Cathode Ray Tubes cartel. The Commission has imposed fines totalling EUR 1,470 million on seven cathode ray tube producers for participating in one or both of two distinct worldwide cartels in the sector. According to the Commission’s decision, between 1996 and 2006, these producers participated in price fixing, market sharing, customer allocation, capacity and output coordination and exchanges of commercial sensitive information (COMP/39437).

New UK damages claims brought in the CAT related to the Animal Feed Phosphates cartel. On 3 December 2012, the UK Competition Appeals Tribunal (CAT) issued a summary of an additional follow-on damages claim under Section 47A of the Competition Act 1998 against Tessenderlo Chemie NV further to its participation in the Animal Feed Phosphates cartel (COMP/38866) (Case No: 1202/5/7/12, Moy Park Limited & Ors v Tessenderlo Chemie NV). Separate proceedings brought in the CAT by Vion Food Group Limited and others against Tessenderlo related to the same cartel were stayed on 26 October 2012 to allow for settlement discussions between the parties (Case No: 1201/5/7/12, Vion Food Group Limited & Ors v (1) Tessenderlo Chemie N.V. (2) Britphos Limited).

Commission publishes summary decision in Freight Forwarding cartel. The Commission has published a summary of its decision in COMP/39462 dated 28 March 2012 in the Official Journal (OJ C 375/7, 05.12.2012).

ECJ upholds Commission Decision in AstraZeneca. On 6 December 2012, the ECJ delivered its judgment dismissing an appeal brought by AstraZeneca against the judgment of the General Court of 2010 (T-321/05, AstraZeneca v Commission, judgment of 1 July 2010) which largely upheld the 2005 Commission Decision (COMP/37507). In its judgment, the ECJ found that AstraZeneca had abused its dominant position by preventing the marketing of generic products replicating Losec. The ECJ concluded that Astra Zeneca’s conduct, including making deliberately misleading representations to national patent offices aimed at securing supplementary protection certificates and the deregistration of marketing authorisations without objective justification, did not come within “competition on the merits” (C-457/10, P AstraZeneca v Commission, judgment of 6 December 2012, CJE/12/158). The Commission has welcomed the ECJ judgment: see MEMO/12/956.

Commission opens proceedings against Bulgarian Energy Holding. The Commission has initiated formal proceedings in order to investigate whether Bulgarian Energy Holding may be abusing its dominant market position in the wholesale electricity market in Bulgaria. The Commission has concerns that territorial restrictions in electricity supply agreements entered into by subsidiaries of Bulgarian Energy Holding may restrict their trading partners’ freedom to deliver electricity to other Member States contrary to Article 102 TFEU (COMP/39767 – BEH Electricity).

Phase I Clearance

M.6704 – Rewe Touristik GmbH / Ferid Nasr / Exim Holding SA (30.11.2012).
M.6715 – CNOOC / Canadian Nexen (07.12.2012) (simplified procedure).
M.6729 – SNCF Participations SAS / Strukton Rail / Europool (04.12.2012) (simplified procedure).
M.6736 – Advent International Corporation / KMD Equity Holding (06.12.2012) (simplified procedure).
M.6741 – Canal+ / N/C+ (30.11.2012) (simplified procedure).
M.6752 – CVC / Cunningham Lindsey Group (03.12.2012).
M.6759 – LBO France Gestion / Euro Druckservice Group (07.12.2012) (simplified procedure).
M. 6770 – American Securities / Metaldyne Group (06.12.2012) (simplified procedure).
M.6775 – TCP Cable / International Cable Holdings / Kutxabank / Euskaltel (03.12.2012).
M.6779 – Barclays / Goldman Sachs / TPG / Gardman (06.12.2012) (simplified procedure).

Internal Market and Services DG launch public consultation on civil enforcement of intellectual property rights. The survey forms part of the Commission strategy to improve the legal framework for intellectual property rights and their enforcement (Consultation documents).

OECD publish paper on international co-operation in cartel investigations. Competition Policy Roundtables series: Improving International Co-operation in Cartel Investigations 2012.

Speech by Director General DG Competition, Alex Italianer: “Legal certainty, proportionality, effectiveness: the Commission’s practice on remedies,” SPEECH/12/07, 05.12.2012.

Speech by Vice President DG Competition, Joaquín Almunia: “The role of competition policy in times of crisis,” SPEECH/12/917, 06.12.2012.

Afghanistan
Council Implementing Regulation (EU) No 1139/2012 of 3 December 2012 (OJ L 332/1, 04.12.2012) amending Annex I of Regulation (EU) No 753/2011 concerning restrictive measures directed against certain individuals, groups, undertakings and entities in view of the situation in Afghanistan. The Implementing Regulation lists additional designated persons/entities.

Al-Qaida
Commission Implementing Regulation (EU) No 1142/2012 of 3 December 2012 (OJ L 332/12, 04.12.2012) and Commission Implementing Regulation (EU) No 1155/2012 of 5 December 2012 (OJ L 335/40, 07.12.2012) amending Annexes I and II of Council Regulation (EC) No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with the Al Qaida network. The Implementing Regulations list additional designated persons/entities.

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