Antitrust and Competition – The EU Weekly Briefing

CARTELS

Ziegler brings damages claim against European Commission in relation to international removal services cartel. On 24 February 2013, details were published in the Official Journal of a claim by Ziegler SA for compensation for loss suffered following the decision of the European Commission (Commission) adopted in the International Removal Services cartel (COMP/38543). In March 2008, the Commission imposed fines totalling €32.7 million on Ziegler and other providers of international removal services in Belgium for fixing prices, sharing the market, and bid rigging contrary to Article 101 TFEU (IP/08/415). According to Ziegler, by requiring its officials to obtain three different quotes for their international relocations, the EU created a regulatory context favourable to the establishment of the cartel and EU officials directly incited Ziegler to commit the infringement for which it was subsequently penalised. In addition, Ziegler claims the practice of cover quotes has not ceased, as a result of which Ziegler now only supplies removal services to a very limited number of EU officials (Case T-539/12, Ziegler v. Commission, Action brought on 12 December 2012). A separate appeal by Ziegler against the Commission decision has been dismissed by the General Court (Case T–199/08) and recommended for dismissal by AG Kokott (C–439/11 P, Opinion delivered on 13 December 2012).

Advocate General recommends General Court annulment in the Fittings cartel be set aside. In 2011, the General Court found that the Commission had erred in finding that Aalberts and its subsidiaries, Aquatis and Simplex, had participated in the Copper Fittings cartel (COMP/38.121) between 25 June 2003 and 1 April 2004 (Case T 385/06, Aalberts v. Commission, Judgment of 24 March 2011). The Commission appealed to the European Court of Justice (ECJ) arguing that the General Court judgment be set aside. In an Opinion delivered on 28 February 2013, AG Mengozzi recommended that the facts established at first instance be reappraised and, accordingly, that the ECJ refer the case back to the General Court (Case C-287/11 P, Opinion delivered on 28 February 2013).

Commission issues second Statement of Objections to ENI and Versalis in synthetic rubber cartel. On 1 March 2013, the Commission announced that it intends re-open the synthetic rubber cartel investigation (COMP/38638) and re-impose the 50% fine uplift for recidivism on ENI S.p.A. and affiliate Versalis S.p.A. annulled by the General Court in 2011 (Cases T-39/07 and T-59/07). The General Court annulled the uplift on the ground that the Commission had not adduced sufficient evidence to justify its conclusion that the previous infringements (namely, Anic in the Polypropylene cartel and Enichem in the PVC II cartel) had been committed by the same undertaking. Information on this case will be available under the case number COMP/40032 (IP/13/179, 01/03/2013).

ARTICLE 101 TFEU

ECJ rules that compulsory systems of professional training may be prohibited by Article 101 TFEU. On 28 February 2013, the ECJ handed down a ruling on a preliminary reference from the Tribunal de Relação de Lisboa (Lisbon Court of Appeal) on whether EU competition law applies to professional associations. The judgment establishes that the EU competition rules will preclude a professional association from imposing on its members a system of compulsory training which eliminates competition within a substantial portion of the relevant market and imposes discriminatory conditions to the detriment of its competitors. The ECJ directed that the Portuguese court must examine whether the system has had, or is likely to have, harmful effects on competition in the internal market. In this regard, the ECJ observed that the restrictions in this case appear to go beyond what is necessary to guarantee the quality of the professional services and, secondly, that the exemption in Article 101(3) TFEU would not apply (Case C-1/12, Ordem dos Técnicos Oficiais de Contas v. Autoridade da Concorrência, Judgment of 28 February 2013) (ECJ Press Release 21/13).

DOMINANCE

UK High Court refuses interim injunction in refusal to supply case. The High Court has dismissed an application by Chemistree Homecare Limited (Chemistree) for an interim injunction in the context of Chapter II Prohibition/Article 102 TFEU proceedings. AbbVie Limited supplied Chemistree, a UK homecare provider, with its HIV antiretroviral therapy drug, Kaletra. On learning that Chemistree was operating as a wholesaler for Kaletra, AbbVie refused to supply Chemistree other than for its UK homecare services business. Chemistree brought proceedings alleging that AbbVie had abused its dominant position, and sought an injunction requiring the supply of Kaletra by AbbVie until trial. In its application for relief, heard by Mr. Justice Roth, Chemistree had to show that there was a serious question to be tried on the issues of dominance and abuse. Mr. Justice Roth held that, on the evidence before the court, there was no real prospect of Kaletra constituting a relevant product market by itself, and therefore no serious question to be tried on the issue of dominance. The High Court also considered the issue of abuse, distinguishing the case from that considered by the ECJ in Sot. Lelos v. GSK. The High Court held that if an undertaking supplies a customer on the basis that the supply is for retail sale and has a policy of not supplying wholesalers, the fact that, unknown to the supplier, its customer is reselling some of those products on the wholesale market does not mean that the customer’s orders for the purpose of wholesale constitute “ordinary orders” within the principles established in United Brands (Chemistree Homecare Limited v. AbbVie Limited [2013] EWHC 264 (Ch), Judgment delivered on 11 February 2013).

EU MERGERS

Commission prohibition decision in Ryanair / Aer Lingus merger. On 27 February 2013, the Commission announced the prohibition of the proposed takeover of Aer Lingus by Ryanair following the conclusion of its Phase II investigation (M.6663). The Commission concluded that the combination of the two leading airlines operating from Ireland would have led to very high market shares on 46 routes (an increase from 35 in 2007) resulting in higher prices for passengers (see IP/13/167, MEMO/13/144 and SPEECH/13/164). The Commission also identified the existence of high barriers to entry, and concluded that there was no prospect that any new carrier would enter the Irish market after the merger to challenge the new entity on a sufficient scale. Commitments offered by Ryanair were deemed inadequate. The Commission prohibited the proposed acquisition back in 2007 (M.4439), while a second notification by Ryanair was withdrawn in 2009 (M.5434). The minority (29.8%) shareholding in Aer Lingus acquired by Ryanair in 2006 is currently under investigation by the UK Competition Commission (CC) (Ryanair / Aer Lingus CC merger inquiry) (see Volume 1, Issue 8). The revised final date for publication of the CC’s report is 11 July 2013 (CC Notice, 01/03/2013).

Phase I Clearance

• M.6847 – Triton / Suomen Lähikauppa Oy (22.02.2013).
• M.6831 – General Motors / Parts of Ally Financial Inc. (22.02.2013) (simplified review).
• M.6820 – EQT Infrastructure II / E.ON Energy from Waste (27.02.2013) (simplified review).
• M.6824 – ALOCO / Bregal Fund III / Quadriga Capital Private Equity Fund IV / LR Global Holding (27.02.2013) (simplified review).
  

UK ANTITRUST

Tesco appeal of OFT Dairy Retail Price Initiatives decision withdrawn from the CAT following settlement. On 26 February 2013, the UK Competition Appeal Tribunal (CAT) published a Consent Order dismissing Tesco’s appeal against the OFT Dairy Retail Price Initiatives decision (OFT Press Release 18/13). Tesco has agreed to pay a fine of £6.5 million (a reduction from £10.43 million) for three infringements of the Chapter I Prohibition upheld by the CAT in its judgment issued on 20 December 2012 (see Volume 1, Issue 9).

PUBLICATIONS/SPEECHES

Speech by the Vice President of DG COMP, Joaquín Almunia. “Introductory remarks on Merger Ryanair / Aer Lingus” (SPEECH/13/164, 27/02/2013).

Speech by the Vice President of DG COMP, Joaquín Almunia. “Relying on the Single Market for the future of Europe” (SPEECH/13/168, 28/02/2013).

UK CC publishes the full report of its market investigation into the supply of statutory audit services to large companies in the UK (Provisional Findings Report).