Winston & Strawn Antitrust and Competition - The EU Weekly Briefing, Volume 1, Issue 8

Volume 1, Issue 8
Monday 14 December 2012

Antitrust and Competition – The EU Weekly Briefing

Commission accepts legally binding commitments from Apple and four publishers for sale of e-books. On 13 December 2012, the European Commission (Commission) agreed to binding commitments offered by Apple and four publishers, Simon & Schuster, Harper Collins, Hachette Livre and Verlagsgruppe Georg von Holtzbrinck (COMP/39847 – E-books). After unannounced inspections in March 2012 (MEMO/11/126), the Commission initiated formal proceedings to investigate whether these companies had engaged in anti-competitive practices affecting the sale of e-books (IP/11/1509). The companies have agreed to terminate on-going agency agreements that include retail price restrictions and a retail price ‘most favoured nation’ (MFN) clause, and have further committed not to enter into new agency agreements featuring MFN clauses for five years. The publishers have also offered a two-year “cooling off” period during which retailers will be free to offer retail price discounts for e-books, subject to certain conditions (IP/12/1367, 13.12.2012).

ECJ rules that Member States may deviate from de minimis thresholds. In its judgment of 13 December 2012, the European Court of Justice (ECJ) held that the Commission De Minimis Notice does not prevent national competition authorities from imposing fines on companies for anti-competitive conduct where the relevant market shares do not reach the thresholds specified within the Notice (C-226/11, Expedia Inc. v Autorité de la concurrence and Others, judgment of 13 December 2012). The preliminary ruling of the ECJ follows the Opinion of Advocate General Kokott in September 2012 (AG Opinion).

Visa Europe appeals Commission rejection of request to modify MIF commitments. On 8 December 2012, details were published of an appeal brought by Visa Europe against the rejection by the Commission of Visa’s request that the debit multilateral interchange fee (MIF) cap be modified (OJ C 379/26, 08.12.2012). The MIF cap was made legally binding by the Commission on 8 December 2010 (Final Commitments) (COMP/39398 – Visa MIF).

General Court dismisses four appeals against Calcium Carbide cartel decision. In July 2009, the Commission imposed fines totalling EUR 61 million on nine companies for their participation in the Calcium Carbide cartel (COMP/39396). The General Court has dismissed claims by four participants in their entirety (T-352/09, Novácke chemická závody v Commission; T-392/09, 1. garantovaná v Commission; T-400/09, Ecka Granulate v Commission, T-410/09, Almamet v Commission judgments of 12 December 2012)

General Court reduces ENI fine in Chloroprene Rubber cartel. The General Court has granted ENI a reduction of the fine imposed by the Commission for its participation in the Chloroprene Rubber cartel (COMP/38629). The General Court has reduced the fine from EUR 132 million to EUR 106.2 million (T-103/08, Versalis and Eni v Commission, judgment of 13 December 2012).

AG advises rejection of Ziegler appeal against International Removal Services cartel decision. AG Kokott has advised the ECJ to reject an appeal by Ziegler against the Commission fine for its involvement in the International Removal Services cartel (COMP/38543) (C-439/11 P, Ziegler v Commission, AG Opinion dated 13 December 2012).

Appeals against Commission rejection of confidential treatment in Car Glass cartel. Details of actions brought by AGC Glass Europe and Pilkington Glass relating to the rejection of confidential treatment by the Commission of certain documents in the Car Glass Cartel (COMP/39125) have been published in the Official Journal (T-462/12, Pilkington Group v Commission; T-465/12, AGC Glass Europe and Others v Commission, OJ C 379/30-34, 08.12.2012).

Commission opens proceedings against Romanian Power Exchange. The Commission has opened formal antitrust proceedings against OPCOM and parent company Transelectrica to investigate whether the conduct of OPCOM (the operator of the only power exchange in Romania) and Transelectrica (the transmission system operator) may amount to an abuse of a dominant position (COMP/39984). The Commission’s investigation will focus on concerns that OPCOM may be discriminating against companies on the basis of their nationality or place of establishment contrary to Article 102 TFEU (IP/12/1355, 11.12.2012).

General Court upholds Electrabel fine for failure to notify. On 12 December 2012, the General Court dismissed an appeal by Electrabel against a Commission decision to impose a EUR 20 million fine on Electrabel for violation of the ‘standstill obligation’ contained in Article 7(1) of the EC Merger Regulation (T-332/09, Electrabel v Commission, judgment of 12 December 2012). The Commission previously concluded that Electrabel had acquired de facto control of Compagnie Nationale de Rhône within the meaning of the EC Merger Regulation without obtaining prior approval (IP/09/895). The General Court confirmed that a minority shareholder may be considered to hold de facto sole control of a company where it is virtually certain of obtaining a majority at future shareholder meetings due to the remaining shareholders being widely dispersed. The fact that Electrabel's acquisition of control was ultimately found not to raise any competition issues was not a decisive factor for determining the gravity of the infringement, nor was the fact that the infringement was committed through negligence sufficient to give rise to a reduction of the fine (General Court Press Release No 165/12). The Commission has welcomed the judgment of the General Court (MEMO/12/976).

Phase I Clearance

M.6673 – Bolloré / Havas (11.12.2012) (simplified procedure).
M.6697 – O.W. Bunker & Trading A/S / Bergen Bunkers AS (12.12.2012).
M.6703 – Flrowa Handels GmbH / OSI Europe Foodworks / JV (14.12.2012) (simplified procedure).
M.6723 – Ferrovial / Qatar Holding / CDPQ / Baker Street Investment / BAA (14.12.2012).
M.6737 – Rautaruukki / CapMan / Fortaco (11.12.2012).
M. 6760 – Clariant / Wilmar / JV (13.12.2012) (simplified procedure).
M.6764 – JCDecaux CEE / Rus AD / Russ Out Of Home (12.12.2012) (simplified procedure).
M.6771 – Bridgepoint / CPPIB / Dorna Sports (13.12.2012) (simplified procedure).
M.6786 – EPH / SPP (14.12.2012) (simplified procedure).

Phase II Investigation

M.6576 – Munksjö / Ahlstrom (IP/12/1338, 07.12.2012) (Commission opens Phase II investigation).

Phase II Clearance

M.6497 – Hutchison / Orange Austria (IP/12/136, 12.12.2012) (with commitments) (see Publications below).

Court of Appeal dismisses Ryanair appeal of CAT judgment. On 13 December 2012, the UK Court of Appeal has upheld the judgment of the Competition Appeals Tribunal that, as a matter of law, the UK Competition Commission (CC) may continue its investigation of Ryanair's completed acquisition of a minority shareholding in Aer Lingus (Case No: 1196/4/8/12). Accordingly, the CC investigation will progress while the European Commission investigates Ryanair’s subsequent bid for the entire issued share capital of Aer Lingus (M.6663 – Ryanair / Aer Lingus III).

European Parliament approves the EU unitary patent. On 11 December 2012, Members of the European Parliament endorsed the so-called “EU patent package.” The international agreement creating a unified patent court will enter into force on 1 January 2014 or after thirteen contracting states ratify it, provided that UK, France and Germany are among them (REF: 20121210IPR04506). The European Patent Office has welcomed the development (see Press Release).

Speech by Vice President DG Competition, Joaquín Almunia: Introductory remarks on Hutchison 3G Austria/ Orange Austria merger decision (SPEECH/12/946, 12.12.2012).

Speech by Vice President DG Competition, Joaquín Almunia: Statement on commitments from Apple and four publishing groups for sale of e-books (SPEECH/12/955, 13.12.2012)

Al-Qaida
Commission Implementing Regulation (EU) No 1187/2012 amending Council Regulation (EC) No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with the Al Qaida network (OJ L 338/23, 12.12.2012). The Implementing Regulation lists additional designated persons/entities.

Terrorist Financing
Council Implementing Regulation (EU) No 1169/2012 of 10 December 2012 amending Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism (OJ L 337/2, 11.12.2012). The Implementing Regulation lists additional designated persons/entities.

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