Antitrust and Competition – The EU Weekly Briefing

ECJ upholds parental liability for Dow and DuPont in chloroprene rubber cartel. On 26 September 2013, the European Court of Justice (ECJ) dismissed appeals by The Dow Chemical Company (Dow) and E.I. du Pont de Nemours and Company (DuPont) related to the European Commission (Commission) decision in the chloroprene rubber cartel (Case No 38629). The ECJ upheld judgments by the General Court, which found DuPont and Dow each liable for the conduct of a joint venture company over which they exercised joint control (C-179/12 P - Dow Chemical v Commission, and C-172/12 P - E.I. du Pont de Nemours v Commission, judgments of 26 September 2013).

ECJ rejects Alliance One and Agroexpansión appeals in Spanish tobacco cartel. On 26 September 2013, the ECJ dismissed two appeals by Alliance One International Inc. (Alliance) related to the Commission decision in the Spanish raw tobacco cartel (Case No 38238). According to the ECJ, the General Court did not err in upholding the Commission’s finding that Alliance should be jointly and severally liable for its subsidiary’s unlawful conduct (C-679/11 - Alliance One International v Commission, and C-668/11 - AOI v Commission (not yet available in English) (ECJ Press Release 118/13).

EU MERGERS

• M.6792 – Goldman Sachs Group / TPG LundyCo / Max Property Group / MPG Hospital Holdings (24.09.2013) (simplified procedure).
• M.7029 – ZTE Services Deutschland / Alcatel-Lucent Network Services (24.09.2013) (simplified procedure).
• M.7014 – Marubeni / GDF SUEZ / NPIH (24.09.2013) (simplified procedure).
• M.7012 – JBS / Seara / Zenda (20.09.2013) (simplified procedure).
• M.6957 – IF P&C / Topdanmark (23.09.2013) (MEX/13/0923).
• M.7025 – Oiltanking / Macquarie FHL / Chemoil (23.09.2013) (simplified procedure).
  

UK ANTITRUST

UK High Court rejects competition defence relating to alleged LIBOR rate fixing. On 20 September 2013, the High Court handed down its judgment on applications by Unitech Global Limited and Unitech Limited (the defendants) to introduce a new defence based on competition law. Deutsche Bank AG and a number of other international banks (the claimants) have brought an action for damages against the defendants for breach of a credit facility agreement and interest rate swap agreement. The defendants sought to rely on the fact that the process by which LIBOR was set by the banks was an unlawful information exchange contrary to Article 101 TFEU and the Chapter I prohibition of the Competition Act 1998 and therefore void. The High Court held that there was no basis in law for finding that the vertical agreement between the defendants and the claimants would be void as a result of the assumed illegality of any horizontal agreements between the claimants (Deutsche Bank AG and Others v Unitech Global Ltd and Unitech Limited [2013] EWHC 2793 (Comm)).

Competition Appeal Tribunal refuses permission to appeal ruling lifting stay in Deutsche Bahn damages action. On 24 September 2013, the Competition Appeal Tribunal (CAT) published an order by which it refused the defendants, other than Morgan Crucible, permission to appeal the CAT ruling lifting the stay on the damages action related to the carbon and graphite cartel (see Volume 1, Editions 40 and 41). The damages action before the CAT in relation to the claims against the defendants (other than Morgan Crucible) will now proceed (see further Case No 1173/5/7/10 – Deutsche Bahn AG & Others v Morgan Crucible Company PLC & Others).

UK MERGERS

Ryanair appeals Competition Commission prohibition decision in Ryanair / Aer Lingus. On 23 September 2013, the Competition Appeal Tribunal (CAT) recE.I.ved an application for review by Ryanair Holdings plc (Ryanair) against the prohibition decision issued by the Competition Commission (CC) in Ryanair / Aer Lingus in August 2013 (see Volume 1, Issue 41) (Case No 1219/4/8/13).

OFT refers construction materials merger to the Competition Commission. On 24 September 2013, the OFT referred the completed acquisition by Breedon Aggregates Limited of certain assets of Aggregate Industries UK Limited to the CC after it identified competition concerns (OFT Press Release 65/13).

SPEECHES/PUBLICATIONS

DG COMP publishes cartel statistics (26 September 2013).

Speech by Vice President of DG Commission, Joaquín Almunia. EU competition policy, relations with the US, and global business (SPEECH/13/749, 25/09/2013).

Speech by Vice President of DG Commission, Joaquín Almunia. Banks in distress and Europe’s competition regime: On the road to the Banking Union (SPEECH/13/750, 25/09/2013).

Speech by Vice President of DG Commission, Joaquín Almunia. Competition and EU policy-making (SPEECH/13/757, 26/09/2013).

Speech by Vice President of DG Commission, Joaquín Almunia. Abuse of dominance: a view from the EU (SPEECH/13/758, 27/09/2013).

SANCTIONS

Al-Qaida
Commission Implementing Regulation (EU) No 895/2013 (OJ L 49/1, 19.9.2013) amending Annex I to 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 Regulation removes a designated person from Annex I.

Zimbabwe
Commission Implementing Regulation (EU) No 915/2013 (OJ L 252/23, 24.09.2013) amending Council Regulation (EC) No 314/2004 concerning certain restrictive measures in respect to Zimbabwe. The Implementing Regulation remove one designated persons/entities from Annex III.