Antitrust and Competition – The EU Weekly Briefing

EU ANTITRUST

ECJ dismisses Eni appeal in synthetic rubber cartel. On 8 May 2013, the ECJ dismissed an appeal by ENI S.p.A. (ENI) against a judgment of the General Court (Case T 39/07) which largely upheld the European Commission’s (Commission) 2006 decision against ENI in the synthetic rubber cartel (COMP/38638). The ECJ dismissed ENI’s claim that the General Court had erred in upholding the Commission’s imputation of liability to ENI for the infringements of its wholly-owned subsidiaries, finding that ENI had not provided sufficient evidence to rebut the presumption of exercise of actual decisive influence. The ECJ also held that the General Court had not erred in its assessment of the fine imposed by the Commission both in terms of gravity and the deterrence multiplier. In its 2011 judgment, the General Court annulled the 50% fine uplift for recidivism on the ground that the Commission had not adduced sufficient evidence, and reduced the fine imposed on ENI from €272.25 million to €181.5 million. The Commission has now re-opened the synthetic rubber investigation (COMP/40032) and issued a second Statement of Objections to ENI in March 2013 (IP/13/179) (see Volume 1, Edition 17). The Commission’s cross-appeal on this aspect of the General Court judgment was rejected by the ECJ (Case C–508/11 – Eni S.p.A. v Commission, Judgment of 8 May 2013).

UK ANTITRUST

CAT stays follow-on damages action in carbon and graphite cartel. The Competition Appeal Tribunal has published an order dated 3 May 2013 staying the follow-on damages action brought by Emerson Electric Company, Valeo SA and Robert Bosch GmBH related to the carbon and graphite cartel (Case No. 1077/5/7/07) for a period of three months.

EU MERGERS

Electrabel appeals General Court judgment upholding fine imposed for failure to notify. Details of an appeal brought by Electrabel SA against the judgment of the General Court (Case T-332/09) upholding the decision of the European Commission to fine Electrabel for acquiring control of Compagnie Nationale du Rhone, without having received prior approval under the Merger Regulation (IP/09/895), have been published in the OJ (Case C-84/13 P – Electrabel v Commission, appeal brought on 19 April 2013).

Phase I Clearance

• M.6918 – Rhône Capital LLC / CSM bakery supplies business (MEX/13/0508) (simplified review).
• M.6860 – AB Volvo / Dongfeng Motor Group Company / JV (MEX/13/0508) (simplified review).
  

UK MERGERS

Competition Commission publishes Issues Statement in AEG / Wembley Arena. On 7 May 2013, the Competition Commission (CC) published an issues statement in its investigation into the completed acquisition of the contract to manage Wembley Arena (CC Press Release) by AEG Facilities (UK) Limited. The CC will first determine whether there is a “relevant merger situation” to establish jurisdiction, and then consider whether the completed acquisition has resulted, or may be expected to result, in an SLC in the UK. This issues statement identifies two theories of harm: first, unilateral horizontal effects following the loss of the Wembley Arena as an independent competitive constraint on pricing at The O2 Arena (and vice versa); and second, unilateral vertical effects in the events promotion market (AEG / Wembley Arena merger inquiry) (see Volume 1, Edition 21).

STATE AID

Commission consults on draft revised General Block Exemption Regulation (GBER) on state aid measures. On 8 May 2013, the Commission published a draft of a revised General Block Exemption Regulation (GBER) to replace Commission Regulation (EU) No 800/2008 which expires on 31 December 2013. The consultation period ends on 28 June 2013 (HT.3365 – SAM – GBER review).

EU SANCTIONS

Myanmar/Burma – financial sanctions repealed

Pursuant to the publication of Council Regulation (EU) No 401/2013 on 5 May 2013, Council Regulation (EC) No 194/2008 renewing and strengthening the restrictive measures in respect of Burma/Myanmar has been repealed. This means that asset-freezing measures and financial restrictions are no longer in place with respect to Burma/Myanmar. The arms embargo and embargo on equipment which might be used for internal repression, however, remain in force (see Council conclusions).

Syria

Council Implementing Regulation (EU) No 363/2013 (OJ L 111/1, 23.4.2013) amending Regulation (EU) No 36/2012 concerning restrictive measures in view of the situation in Syria. The Implementing Regulation removes one person from Annex II.

SPEECHES / PUBLICATIONS

Speech by Chief Executive of the OFT, Clive Maxwell: “The Competition and IP Interface: setting the scene” (7 May 2013).