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Focus Antitrust - 10 April 2014

In the News

European Commission fines power cable producers for participation in cartel

The European Commission has imposed fines totalling €302 million on 11 producers of underground and submarine high voltage power cables for their involvement in a market and customer sharing cartel that lasted for ten years and operated throughout most of the world.

Most of the world´s largest high voltage power cable producers participated in the illegal agreements, including ABB, Nexans, Prysmian, J-Power Systems, VISCAS, EXSYM, Brugg, NKT, Silec, LS Cable and Taihan.

ABB received full immunity from fines under the Commission's Leniency Notice since it was the first to reveal the cartel to the Commission. J-Power Systems (and its parents) received a 45% reduction of the fine for cooperating with the investigation under the Commission's Leniency Notice.

They also received partial immunity for the first two years of their cartel involvement, since they were the first to provide the Commission with evidence of the cartel during that time.

European Commission fines producers of steel abrasives in cartel settlement

The European Commission has used the cartel settlement procedure to fine three producers of steel abrasives a total of €30.7 million for their participation in an illegal price-fixing cartel. The Commission found that the companies had, over six years, colluded to discuss key components of their prices in the EEA and had also agreed not to compete on price for certain customers.

Three cartel participants received 10% reductions in their fines based on their agreement to settle the case with the Commission. A fourth cartel participant received full immunity from fines under the Commission's Leniency Notice.


Articles 101 and 102
  • Advocate General Kokott has delivered her opinion on Nexans’ appeal against a General Court judgment that partially upheld the European Commission’s decisions relating to unannounced inspections in the electrical cables sector. The Advocate General considered that the ECJ should dismiss Nexans' claims which allege that the General Court wrongly rejected Nexans’ argument that the dawn raid was insufficiently precise and overly broad in its geographic scope. Rather, AG Kokott considered that the Commission had sufficiently specified the subject-matter and purpose of the inspections.


UK Courts
  • The Supreme Court has delivered its judgment on Morgan Advanced Materials plc’s (formerly Morgan Crucible) appeal against a Court of Appeal judgment that held that damages actions against it had been brought in time, contrary to the position previously taken by the CAT. The Supreme Court set aside the Court of Appeal's ruling and concluded that the relevant decision establishing that Article 101 TFEU had been infringed was the Commission’s Decision of 3 December2003, and that once the time for the appellant to appeal against that Decision had expired (on 13 February 2004), the respondents had two years within which to bring a follow-on claim. The follow-on claim for civil damages which the respondents in fact only made on 15 December 2010 was therefore out of time.
  • The Court of Appeal has upheld the OFT’s appeal against a CAT ruling that allowed Somerfield/Co-operative Group and Gallaher an extension of time to appeal against the OFT's tobacco retail pricing decision. The Court of Appeal concluded that the CAT had wrongly found that there were "exceptional circumstances" justifying the extension of the time limit for bringing an appeal and that there were no good reasons for Gallaher and Somerfield having failed to appeal the OFT's decision in time.
  • The CMA has published its final report on the completed acquisition by Breedon Aggregates Limited of certain Scottish assets of Aggregate Industries UK Limited, confirming the provisional findings of the CC. To address concerns that the transaction gives rise to a substantial lessening of competition for products in three areas, the CMA will require Breedon to sell an asphalt plant in the Aberdeen area, a ready mix concrete plant in the Peterhead area, and will impose a price control for asphalt produced in the Inverness area.
  • In respect of the completed acquisition by Eden (GM) Limited of two car dealerships from Riders Garages Limited, the CMA has made an initial enforcement order (to prevent pre-emptive action in completed (and anticipated) mergers) to Eden (GM) Limited and Eden Automotive Investments Limited.
  • The CMA has published guidance on its approach to Short-form Opinions (a process introduced by the OFT under which it might prepare and publish advice on the application of competition law to agreements in certain), explaining when a Short-form Opinion may be available, how a request should be made to the CMA, and the CMA's process in preparing a Short-form Opinion.
  • The CMA has published a market study notice in respect of its intention to examine the supply of personal current account services. 
  • The CAT has published a ruling dismissing Lafarge Tarmac’s application to admit fresh expert evidence in its appeal against the final report on the aggregates, cement and ready-mix concrete market investigation. The CAT did not consider that the expert evidence was required to assist the CAT’s understanding of technical issues.
  • Following a joint application by the UK claimants and the defendants, the CAT has published an order staying for three months the claims by the UK claimants in the Deutsche Bahn and others v Morgan Crucible and others damages action.
  • The CAT has published a summary of Skyscanner Limited’s appeal against the OFT’s decision to accept commitments from Booking.com, priceline.com, Expedia, InterContinental Hotels Group and Hotel Inter-Continental London. Skyscanner alleges that the OFT has acted ultra vires in accepting commitments that require third parties to act in accordance with them, has failed to consider Skyscanner’s representations and the potential anti-competitive consequences that the commitments may have. 
  • Following a complaint from TNT Post UK Limited in February 2014, Ofcom opened an investigation into certain prices, terms and conditions offered by Royal Mail for access to certain letter delivery services. Ofcom has now decided to use its powers under the Competition Act 1998 to investigate the matters raised by TNT's complaint to determine whether Royal Mail has abused a dominant position in breach of the Chapter II prohibition of the Competition Act and/or Article 102 TFEU.  
  • The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (SI 2014/892) has been published, making consequential amendments to a number of enactments as a result of the abolition of the OFT and the CC, and the transfer of functions to CMA.
  • The Enterprise Act 2002 (Protection of Legitimate Interests) (Amendment) Order 2014 (SI 2014/891) has been published, introducing amendments to the European merger intervention regime to reflect the reforms introduced by the Enterprise and Regulatory Reform Act 20013.
  • The Financial Conduct Authority has announced that it intends to launch a market study to conduct a full-scale competition review of the credit card market by the end of 2014.

This article was written by Paul Stone.  

For more information please contact Paul on +44 (0)20 7203 5110 or paul.stone@crsblaw.com