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Focus Antitrust - 11 December 2013

In the News

European Commission fines Johnson & Johnson and Novartis in pay for delay case

The European Commission has fined Johnson & Johnson €10.8 million and Novartis €5.5 million for agreeing to delay the entry into the Dutch market of a generic version of the drug fentanyl. The Commission found that the companies entered into a co-promotion agreement which provided Sandoz (the Dutch subsidiary of Novartis) with financial incentives not to launch a generic version on the Dutch market. The Commission concluded that this agreement constitutes a breach of Article 101 TFEU by object.

European Commission fines international banks for illegal cartels

The European Commission has fined eight international banks a total of €1.71 billion for participating in cartels in markets for financial derivatives covering the EEA, in contravention of Article 101 TFEU and Article 53 of the EEA Agreement. The Commission used the cartel settlement procedure to reach two separate decisions: the first relates to collusion by four institutions (Barclays, Deutsche Bank, Société Générale and RBS) which participated in a cartel in respect of interest rate derivatives denominated in the euro currency, whilst the second relates to collusion between six institutions (UBS, RBS, Deutsche Bank, JPMorgan, Citigroup and RP Martin) which participated in one or more bilateral cartels in respect of interest rate derivatives denominated in Japanese yen. Barclays and UBS received complete immunity from fines under the Commission's 2006 Leniency Notice, whilst the remaining companies' fines were reduced by 10% for agreeing to settle. 

OFT fines suppliers of alarm systems for collusive tendering

The OFT has held that Cirrus and three other suppliers of access control and alarm systems to retirement properties have breached the Chapter I prohibition of the Competition Act 1998 by entering into a number of collusive tendering agreements. Under the agreements, each of the other three companies agreed to submit higher bids than Cirrus, with the aim that Cirrus would win the contracts. The three other companies have been fined a total of £53,410. Cirrus received immunity under the OFT's leniency policy. 


Articles 101 and 102
  • European Commission officials and their counterparts from the relevant NCAs have conducted unannounced inspections in several member states at the premises of a number of companies active in the manufacture, distribution and retail of consumer electronics products and small domestic appliances, due to suspicions that the companies may have breached Article 101 TFEU by restricting online sales of their products.
  • The European Commission has found that four North Sea shrimps traders operated an illegal price-fixing cartel, contrary to Article 101 TFEU, and has imposed fines totalling €28.7 million, with one company receiving full immunity from fines. The Commission found that the companies agreed to fix prices and share sales volumes of North Sea shrimps in Belgium, France, Germany and the Netherlands.  
  • The European Commission has published the recommendations by the European Competition Network which set out common views and general principles on the powers and procedures required to ensure the effective enforcement of the EU competition rules. 
  • The European Commission has published its fourth Report on the Monitoring of Patent Settlements between originator and generic companies. The main aim of the monitoring exercise is to improve the understanding of the use of this type of agreement and to identify settlements which may delay market entry of generics.
  • The ECJ has dismissed in their entirety appeals by Solvay SA, Solvay Solexis SpA, Caffaro Srl and SNIA SpA against judgments of the General Court which rejected their appeals against the European Commission's decision on the bleaching chemicals cartel. It also dismissed the Commission’s appeal against the General Court's judgment concerning Edison SpA's appeal. The ECJ held the General Court had not erred in law in annulling the Commission's decision with respect to Edison. The General Court had correctly held that the Commission had failed to consider sufficiently the evidence that adduced to rebut the presumption that Edison exercised decisive influence over the conduct of its wholly-owned subsidiary. 

The European Commission has adopted a package of measures to simplify the procedures for notifying mergers under the EU Merger Regulation. The Commission has extended the categories of cases to which the simplified merger procedure would apply and has increased the market share levels for simplified treatment for horizontal or vertical mergers to, respectively, 20% and 30%. The Commission has also amended Form CO, the Short Form CO and Form RS, with the aim of reducing the amount of information that needs to be provided in all cases.


Competition Appeal Tribunal

The CAT has delivered its ruling on the applications by Eurotunnel and Société Coopérative de Production SeaFrance SA (SCOP) for review of the CC's final report on the acquisition by Eurotunnel of certain of the former SeaFrance SA’s assets. The CAT dismissed claims that by failing to disclose certain information to the parties during its investigation, the CC had breached the principles of natural justice. It also dismissed claims that the CC had failed to consider certain issues relevant to its decision. Further, the CAT rejected challenges to the proportionality of the remedy imposed. In respect of SCOP’s challenge of the CC’s jurisdiction, however, the CAT expressed doubts as to whether Eurotunnel had in fact acquired an “enterprise” and remitted this issue to the CC. 

Competition Commission

The CC has published its issues statement as part of its inquiry into the completed joint venture between Tradebe Environmental Services Ltd and Sita UK Ltd. 


The OFT has accepted initial hold separate undertakings from Ridgeway Garages (Newbury) Limited in respect of its completed acquisition of Parkview Skoda. 

For more information please contact Paul Stone, Partner

T: +44 (0)20 7203 5110