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Focus Antitrust - 12 March 2014

In the News

Two power exchanges fined for participation in cartel

Two European spot power exchanges have been fined a total of €5,979,000 for breaching Article 101 TFEU.

The Commission found that EPEX Spot and Nord Pool Spot agreed not to compete with each other for their spot electricity trading services in the EEA and engaged in market sharing by allocating European territories between them.

Both power exchanges agreed to settle the case with the Commission under the cartel settlement procedure and accordingly received a 10% fine reduction. 

CAT dismisses Ryanair appeal against Competition Commission decision

The CAT has dismissed Ryanair's application for review of the CC's final report on the completed acquisition by Ryanair of a minority stake in Aer Lingus.

The CAT held that the CC's proposed divestiture order did not breach the duty of sincere co-operation in Article 4 of the TFEU and dismissed Ryanair's claims that the CC’s failure to disclose the identity of certain airlines that provided evidence during the merger investigation was procedurally unfair.

The CAT considered that the CC had correctly identified a substantial lessening of competition and that the divestiture remedy was proportionate. Ryanair has already announced that it intends to seek permission to appeal the CAT's judgment to the Court of Appeal.



Articles 101 and 102
  • Details of Duravit AG’s appeal against the General Court’s judgment on its appeal against the European Commission's decision on the bathroom fixtures and fittings cartel have been published in the Official Journal. Duravit alleges that the General Court applied the wrong standard of review when considering the Commission's cartel decision. Duravit further alleges that the General Court made certain procedural errors and wrongly applied Article 101 TFEU in analysing the alleged cartel activities.
  • The European Commission has fined a Romanian Power Exchange a total of €1,031,000 for breaching Article 102 TFEU. The Commission has found that, by requiring that all participants on its electricity spot markets hold a Romanian VAT registration, the company in question (OPCOM) has abused its dominant position by discriminating against EU-traders on the basis of their nationality or place of establishment. 
  • The European Commission has decided to initiate an in-depth Phase II investigation into Huntsman’s acquisition of the titanium dioxide assets of Rockwood. The Commission is concerned that the merger could reduce customer choice, as it appears that the parties are the leading suppliers of sulphate-based titanium dioxide and compete closely with one another.



Competition Appeal Tribunal

• The CAT has published draft rules on collective actions, setting out its procedures in respect of collective proceedings and collective settlements relating to infringements of competition law.

  • The OFT is consulting on its intention to accept binding commitments from Epyx to address competition concerns in respect of Epyx's behaviour in the market for the supply of service, maintenance and repair (SMR) platforms in the UK. The OFT considers that as a result of various provisions in its customer contracts, Epyx may be abusing its dominant position in the market for the provision of SMR platforms. The OFT is particularly worried that the contractual provisions could result in market foreclosure by preventing the development and marketing of alternative systems, with the effect of increasing barriers to switching and entry. The commitments offered by Epyx would serve to relax these contractual restrictions, allowing its customers the freedom to work with alternative systems and enjoy more frequent opportunities to switch supplier.
  • The OFT has provided an update in respect of its market study on competition in banking services for SMEs, indicating that it considers competition may not be operating effectively due to certain market features (including high concentration, barriers to entry and expansion and perceived barriers to switching). The OFT considers that the market study should be concluded by the CMA who should decide whether or not to make a market investigation reference, within the context of a wider examination of competition in the retail banking sector. The CMA aims to publish the findings of its work in respect of SMEs (and in respect of the OFT’s review of personal current accounts) during the summer, and to reach a decision on whether to make a market investigation reference in autumn. 
  • The FCA has conducted its first competition-based market study and has provisionally concluded that competition in the markets for general insurance add-ons is ineffective, potentially resulting in poor consumer outcomes.
  • The Department for Transport has issued a consultation on the implementation of the CC’s 2011 recommendations in respect of the local bus market. The CC suggested a number of remedies designed to tackle certain adverse effects on competition.
  • A number of statutory instruments which relate to the entry into force of the competition provisions of the Enterprise and Regulatory Reform Act 2013 have been published, including the Competition Act 1998 (Competition and Markets Authority's Rules) Order 2014.