Antitrust and Competition – The EU Weekly Briefing

CARTELS

General Court grants interim relief in request for confidential treatment in car glass cartel. On 11 March 2013, the General Court made an order further to an application by Pilkington Glass Ltd (Pilkington) for the continued confidential treatment of certain information by the European Commission (Commission). The Commission had refused Pilkington’s request for confidential treatment with respect to certain information intended to be included in a second (more complete) public (non-confidential) version of the 2008 Car Glass decision (COMP/39125). Pilkington had requested the confidential treatment of information concerning: (i) customer names, product names or descriptions of products, as well as any other information which might identify individual customers (Category I information); (ii) the number of parts supplied by the applicant, the share of the business of a particular car manufacturer, pricing calculations or price changes (Category II information); and (iii) information which, according to the applicant, might identify certain members of its staff who were allegedly involved in implementing the cartel (Category III information). The General Court found that Pilkington’s application should be dismissed in relation to Category III information, because the risk of serious and irreparable harm was to third parties and not to Pilkington. However, the General Court upheld Pilkington’s application as regards Categories I and II, which the Commission must refrain from publishing. The question of whether the Commission made errors in rejecting Pilkington’s confidentiality requests will be examined by the General Court in the main proceedings (Case T 462/12, Pilkington Group v Commission, Order published on 11 March 2013).

Commission revises guidance on conduct of ‘dawn raids’. On 18 March 2013, the Commission issued revised guidance on the conduct of inspections at the business premises of companies suspected of having breached the EU competition law rules (so-called ‘dawn raids’) (Explanatory Note 8/03/2013). The revised Explanatory Note interprets the Commission’s extensive investigatory powers broadly, largely codifying Commission current practices and, in particular, with respect to forensic IT searches. The Explanatory Note reflects the methods for identifying and capturing data in electronic form through the use of their own dedicated software and/or hardware. The Commission may impose fines of up to 1% of a company’s total turnover for the preceding business year for refusing to submit to an inspection ordered by decision.

STATE AID

ECJ quashes General Court ruling on France Télécom “psychological” aid decision. On 19 March 2013, the European Court of Justice (ECJ) overturned the judgment of the General Court annulling a Commission decision finding that France had granted France Télécom unlawful State aid. The Commission had found that the combination of a public declaration of support and announcement of a proposed shareholder loan (which, in the event, was not accepted by France Télécom) by the French Minister for Economic Affairs had prevented France Télécom’s rating from being downgraded to junk status (C13a/2003 – Mesures financières - France TELECOM). In May 2010, the General Court annulled the Commission Decision on the basis that the Commission had not adduced sufficient proof that the announcement itself entailed a transfer of State resources (Joined Cases T--425/04, T-444/04, T-450/04 and T-456/04, French Republic, France Télécom SA, Bouygues SA, Bouygues Télécom SA v Commission, Judgment of 21 May 2010), which was appealed by the Commission and others. The ECJ has now found that the General Court erred in law, and wrongly required a close connection between the advantage and the commitment of State resources. When determining the existence of state aid, the Commission must establish a sufficiently direct link between the advantage given to the beneficiary and a reduction of the State budget or a sufficiently concrete economic risk of burdens on that budget. But, contrary to what the General Court found, it is not necessary that such a reduction, or even such a risk, should correspond or be equivalent to that advantage (Joined Cases C-399/10 P, C-401/10 P, Judgment of 19 March 2013) (see MEMO/13/237, 19/03/2013).

EU MERGERS

Phase I Clearance

• M.6829 – Prestige Motor Holdings / Aston Martin (20.03.2013) (simplified review).
• M.6859 – Mitsubishi Corporation / Isuzu Motors Ltd. / Isuzu Motors India Private Ltd. (20.03.2013) (simplified review).
• M.6875 – TenneT Offshore / Mitsubishi Corporation / TenneT Offshore 8 (MEX 13/20.03) (simplified review).
• M.6877 – Oil Tanking GmbH / Gunvor Group Ltd / PT Oiltanking Karimun (18.03.2013) (simplified review).
• M.6643 – Uniqa / Dekra / Dekra-Expert (20.03.2013) (simplified review).

UK ANTITRUST

Competition Commission releases hibu’s Yellow Pages undertakings. The Competition Commission (CC) has released hibu plc (hibu) (formerly Yell Group plc) from undertakings offered in April 2007 following the classified directories market investigation. The CC concluded that increased internet access and usage by both consumers and advertisers has led to switching away from printed classified directories. This means that hibu no longer has market power in this area and that the Undertakings are no longer necessary (News Release) (see Volume 1, Issue 15).

SPEECHES/CONSULTATION

Speech by the Vice President of DG COMP, Joaquín Almunia. “Time for the Single Market to come of age” (SPEECH/13/243, 20/03/2013).

Speech by the Vice President of DG COMP, Joaquín Almunia. “European and global perspectives for competition policy” (SPEECH/13/250, 21/03/2013).

Commission Consultation on new de minimis State aid Regulation. Regulation (EC) 1998/2006, which set the State aid de minimis ceiling at EUR 200,000 per undertaking over three fiscal years expires on 31 December 2013 (HT.3572 – SAM – de minimis review).

OFT publishes final Annual Plan 2013-2014. The “Annual Plan 2013-2014” has been published following a consultation. The Competition and Markets Authority (CMA) will be responsible for the competition, mergers and markets regime in the UK from April 2014 (Press Release 25/13).

SANCTIONS

Al-Qaeda
Commission Implementing Regulation (EU) No 242/2013 (OJ L 75/25, 19.03.2013) amending Council Regulation (EC) No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with the Al-Qaeda network. The Implementing Regulation removes a designated person from Annex I.