EU Competition & Regulatory

Transcription

1 EU Competition & Regulatory 3 9 JULY 2015 ISSUE 27 Legal and policy developments at the EU level QUICK LINKS: ARTICLE European Competition Network Brief Issue 2/2015 The latest issue of the ECN Brief was published in July The European Competition Network (ECN) is the organisation through which the European Commission and the EU s National Competition Authorities (NCAs) cooperate. The table below summarises the major developments in the application of competition law at EU and national level covered by this ECN Brief. For further information on any EU or UK Competition related matter, please contact the Competition Group or your usual Slaughter and May contact. Square de Meeûs Brussels Belgium T: +32 (0) One Bunhill Row London EC1Y 8YY United Kingdom T: +44 (0)

2 European Union Austria General Court clarifies circumstances in which the Commission may reject a complaint previously reviewed by a NCA. In 2008 easyjet complained to the Dutch competition authority about charges set by Schiphol Airport. It alleged that they infringed national aviation law and amounted to an abuse of dominance under 102 TFEU. The regulator rejected the complaints. In 2011 easyjet raised its 102 complaint with the European Commission which rejected it in Easyjet challenged this rejection before the General Court (in Case T-355/13, easyjet Airline v. Commission). The Court confirmed that the Commission can reject complaints: i) if previously rejected by a NCA on priority grounds; or ii) if previously rejected by a NCA on national law grounds provided the NCA conducted the initial review in the light of EU competition law ( ). Cartel Court (CC) fines Vöslauer Mineralwasser 653,775. Vöslauer was found to have engaged in price fixing agreements with several retailers of nonalcoholic beverages, especially mineral water ( ). CC fines 30 companies active in the freight forwarding market a total of 17,468,091. The misconduct included agreeing tariffs for domestic combined shipments. A majority of infringers have since settled ( ). European Commission adopts decision launching a sector inquiry into e-commerce in all EU Member States. The inquiry seeks to identify unjustified barriers to cross-border trade in online goods and services. A preliminary report is planned for mid The final report is scheduled for the first quarter of 2017 ( ). 02

3 CC fines retailers SPAR, Sutterlüty and MPREIS 3,000,000, 78,750 and 225,000 respectively for engaging in price fixing agreements with suppliers. In the latter two cases, the CC reduced the fine to account for the infringer s passive role and the pressure exerted by suppliers to maintain minimum prices ( ). CC fines dairy producer NÖM 583,200 for engaging in RPM agreements with suppliers. The decision was taken in the framework of a settlement procedure ( ). Bulgaria Commission on Protection of Competition (CPC) recommends scrapping price regulation of taxi services. The CPC warned that municipally mandated minimum prices and a national maximum price directly restrict competition ( ). CPC advocates removal of restrictions of competition in surveying and energy efficiency auditing. The CPC cites both compulsory membership of the Chamber of Surveyors and compulsory registration of energy auditors in the national companies register as impediments to competition in these sectors ( ). 03

4 France French, Italian and Swedish NCAs close their investigations into anti-competitive price parity clauses in Booking.com case. The NCAs accepted commitments offered by Booking.com which prevent it from requiring hotels to offer better or equal room prices via Booking.com than they offer via competing online travel agencies. In addition, Booking.com cannot prevent hotels from offering discounted room prices provided that these are not marketed or made available to the general public online ( ). The Authorité de la concurrence fines 10 dairy producers a total of 192,700,000 for operating an anti-competitive agreement. From 2006 to 2012 the producers aimed to fix prices and allocate volumes. Yoplait, the first leniency applicant, benefitted from immunity ( ). French and UK NCAs produce joint report on ecosystems in digital economy and their effects on competition. The joint report with the CMA describes an ecosystem as a combination of certain technologies that are used together such as mobile devices, their operating systems and services which run on these operating systems ( ). The Authorité sanctions information sharing and discussion of pricing policies between manufacturers of home and personal care products. The Authorité imposed its largest ever fines, totalling almost 1billion ( ). 04

5 Germany Bundeskartellamt (BKartA) fines United Navigation 300,000. From July 2009 to May 2014 United Navigation s sales representatives agreed with several retailers that they would not sell portable navigation devices below certain endcustomer prices ( ). BKartA fines Metzeler Schaum 3,380,000 for resale price maintenance in the market for mattresses. Proceedings against two other manufacturers are ongoing ( ). Greece Düsseldorf Higher Regional Court upholds BKartA s prohibition of HRS s best price clauses. The court concluded that clauses which oblige hotels to offer hotel booking platforms their best prices restrict competition as hotels cannot award booking platforms which charge less commission with lower room prices. They also make the entry of new platforms more difficult ( ). Hellenic Competition Commission (HCC) fines Procter & Gamble 5,300,000 for antitrust violations in retail market for baby diapers in Greece. The HCC objected to individualised target rebates and rebates conditional upon the commitment of excessive shelf space to baby diaper products ( ). HCC issues notice on concept and treatment of confidential information. The notice explains what the HCC does and does not consider confidential information ( ). 05

6 Italy Italian Competition Authority (ICA) accepts commitments offered by Booking.com. See France. ICA fines two cartels in ready-mix concrete sector. The investigation followed an application for leniency from Calcestruzzi, which was granted immunity from fines. The other parties were fined a total of more than 12,500,000 for practices which included market sharing and bid rigging ( ). ICA fines leading insurers 29,000,000 for bid rigging in public transport insurance. The ICA found the infringement to be very serious since it concerned the public procurement of a compulsory service: mandatory vehicle insurance ( ). Lithuania Supreme Administrative Court upholds decision that the Lithuanian Shipbrokers and Agents Association and 32 shipping companies engaged in a cartel. While the Court affirmed the Competition Council s decision, it reduced the fines imposed on some of the infringing parties ( ). Competition Council hits cartel in the market for heat and power plants construction. The Council fined UAF Manfula 333,900 and Envija 303,600, while UAB Lukrida benefitted from immunity. The case is one of only a few cases in which the Council has opened an investigation following a whistleblower s testimony ( ). 06

7 Poland Slovakia The Office of Competition and Consumer Protection publishes transparency guidelines. One set of guidelines aims to make public the rules governing contacts between the regulator and enterprises. Another lays out the principles the regulator will follow when publishing the results of market studies, including its treatment of confidential information ( ). The Antimonopoly Office of the Slovak Republic (AMO) publishes guidance on priority setting with regard to vertical agreements restricting competition by object. Under the guidelines, the AMO will usually focus on cases where at least one undertaking s market share exceeds 10% of the relevant market ( ). Slovenia Spain Slovenian Competition Protection Agency (CPA) concludes that Telekom Slovenije abused its dominant position on wholesale broadband and infrastructure markets. The CPA found that Telekom Slovenijie had failed to offer its rivals access to its network on terms as advantageous as those offered to its own retail division ( ). Comision Nacional de los Mercados y la Competencia (CNMC) imposes fines of 88,000,000 in dairy industry. The CNMC found nine competitors and two sectoral regulators to have exchanged strategic information which allowed the companies to adjust their behaviour and to avoid having to offer better prices and commercial conditions to cattle farmers ( ). 07

8 CNMC fines six petrol product operators a total of 32,400,000 for anticompetitive agreements. The agreements spanned a wide range of conduct, including non-negotiation with petrol stations operated under a rival brand, non-aggression agreements on prices and the exchange of sensitive information. A second case, concerning price coordination between a petrol product operator and the businesses that operate in its automobile fuel distribution networks, is pending ( ). Sweden Swedish Competition Authority (SCA) accepts commitments offered by Booking.com. See France. SCA seeks fine against Swedish Match for abusing its dominant position. In its application to the Stockholm District Court, the SCA alleged that Swedish Match s ownership of the coolers in which wet tobacco ( snus ) is displayed in stores and its control of the labelling system for such coolers, restricts its competitors brand and price communication opportunities ( ). United Kingdom CMA publishes 60 second summaries to aid compliance. The summaries intend to offer concise guidance on steps businesses can take to comply with competition law ( ). French and UK NCAs produce joint report on ecosystems in digital economy and their effects on competition. See France. 08

9 NOTIFICATIONS 1. Lion Capital/Aryzta/Picard Groupe (M.7669, ). 2. Simplified procedure cases RWE/VSE (M.7589, ). Lone Star/Balta (M.7696, ). Apollo/Verallia Group (M.7693, ). PHASE I CLEARANCES 3. Unconditional clearances OG Capital/KEM One Innovative Vinyls (M.7572, ). Iridium Concesiones de Infraestructuras/ Aberdeen Infrastructure/Concessionaria Hospital Universitari son Espaces (M.7575, ). 4. Unconditional clearances: simplified procedure Mitsui/GEStamp/GRI (M.7634, ). Castleton/Morgan Stanley Global Oil Merchanting Unit (M.7665, ). FAM/FANOPI/NEFAB (M.7620, ). Pamplona/Partner in Pet Food Holdings (M.7623, ). CD&R Group/Scimitar Topco Limited (M.7656, ). Katara Hospitality/Starwood Hotel & Resorts Worldwide/Westin Excelsior Hotel (M.7650, ). 5. Commission sends Statement of Objections to MasterCard on cross-border rules and interchange fees The Commission has sent a Statement of Objections to MasterCard outlining the Commission s preliminary view that MasterCard s rules prevent banks from offering lower interchange fees to retailers based in another EEA Member State where fees may be higher. As a result, the Commission is concerned that retailers cannot benefit from lower fees elsewhere and cross-border competition is restricted. The Commission also alleges that MasterCard breaches European antitrust rules as its interchange fees for European transactions using cards issued in other areas of the world are artificially high (IP/15/5323, ). 6. General Court rules on access to files in Axa Versicherung AG v Commission Axa appealed the decision of the Commission to refuse it access to a number of documents from the case-file relating to the cartel among car-glass makers Asahi, Pilkington, Cie. de Saint-Gobain and Soliver to the General Court. Axa was seeking access to the documents to help it bring a damages action against the glass manufacturers. The Court held that the Commission investigators had been wrong to delete references to potentially sensitive whistleblower information in the case-file index and ordered that it should be disclosed to Axa. However the Court dismissed the rest of Axa s wide-ranging demands for access to documents (Case T 677/13 Axa Versicherung AG v Commission, judgment of , English version not yet available). 7. Court of Justice (ECJ) confirms fine imposed in LCD cartel case In 2010, the Commission fined InnoLux, a Taiwanese company, for its involvment in a cartel in the market for liquid crystal display (LCD) screens. The General Court subsequently lowered InnoLux s fine to 228 million but dismissed the challenge in relation to the sales of 09

10 products taken into account in setting the fine. InnoLux then brought a further appeal to the ECJ. In its judgment the ECJ, following the General Court, held that the Commission had been entitled to take into account sales of products including the sales in the EEA of finished products (produced outside the EEA), such as LCD screens, for the purposes of calculating the fine. Otherwise, the ECJ held, the fine would artificially minimise the significance of the infringement. InnoLux s fine of 288 million was upheld (Case C-231/14P, InnoLux Corp. v Commission, judgment of ). 8. European Commission approves third prolongation of Polish credit union resolution scheme The Commission has authorised the third prolongation of the Polish credit union resolution scheme until 31 December The Commission found that the scheme was in line with its rules on State aid to banks during the crisis, and the measures continue to be welltargeted, proportionate and limited in time and scope. (SA.42078, ). London T +44 (0) F +44 (0) Brussels T +32 (0) F +32 (0) Hong Kong T F Beijing T F Published to provide general information and not as legal advice. Slaughter and May, For further information, please speak to your usual Slaughter and May contact.