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Focus Antitrust - 19 February 2014

In the News

AG Wathelet delivers opinion on appeal against General Court judgment on fasteners cartel

AG Wathelet has delivered an opinion on an appeal by companies in the YKK group against the General Court’s judgment dismissing their appeal against the European Commission's decision on the fasteners cartel.

AG Wathelet felt that the General Court had not erred in its assessment of the fine set by the Commission for one of the cartel infringements, nor had it erred in upholding the Commission's application of the Leniency Notice.

However, in respect of the fine imposed for a second cartel infringement, the General Court had wrongly interpreted Article 23(2) of Regulation 1/2003.

For the period prior to its acquisition by the YKK Group, YKK Stockco was found to be solely liable for the infringement; however, in calculating the fine for this period, the Commission had wrongly used the turnover of the whole YKK group. Only the turnover of YKK Stockco, should have been used.

In addition, the deterrence multiplier applied to reflect the significant financial resources of the whole YKK group should not have been applied to the fine for which YKK Stockco was exclusively liable, and accordingly, it was held that fine imposed solely on YKK Stockco should be reduced. 

European Commission obtains further proposed commitments from Google 

The European Commission has obtained an improved commitments proposal from Google, aimed at addressing the Commission's competition concerns about Google's online search and search advertising.

As part of the remedies package, Google proposes to display with comparable prominence three rival services (selected on an objective basis), whenever it promotes its own specialised web search services.

This proposal is intended to strengthen the remedies which have already been proposed to address the Commission's concerns about Google's favourable treatment of its own specialised search services.

Having received the new proposal, the Commission now takes the view that the proposed package of commitments is capable of addressing all its competition concerns. The Commission will consult on this view with the complainants who have taken issue with Google's practices, before arriving at a final decision on whether or not to make the commitments legally binding on Google. 


Articles 101 and 102
  • The General Court has dismissed an appeal against the European Commission’s decision to reject a complaint alleging that Respol had failed to comply with binding commitments accepted under Article 9 of Regulation 1/2003. The General Court did not consider that the Commission had made any grave errors of assessment, nor had it exceeded its discretion in deciding that it was not in the EU interest to re-open the proceedings against Repsol. Given that the Spanish Competition Authority had independently fined Repsol for price-fixing, contrary to Article 101 TFEU, the Commission was correct to conclude that it was not necessary for it to take additional action against Repsol. 
  • The General Court has dismissed appeals brought by Arkema France, CECA SA, Elf Aquitaine SA and AC Treuhand AG against the European Commission's decision on the heat stabilisers cartel. The General Court agreed with the Commission's finding that there had been two separate cartels involving tin stabilisers and ESBO/esters. The General Court did not consider that the Commission was time barred from imposing fines since the Commission had not erred in its assessment of the duration of the cartels. Further, the General Court confirmed that a consultancy firm that intentionally contributes to a cartel may be held liable as a co-perpetrator of an infringement. 
  • Details of appeals by Zucchetti Rubinetteria, Mamoli Rubinetteria, Villeroy & Boch Belgium and Villeroy & Boch France against the General Court’s judgments on their actions to challenge the European Commission's decision on the bathroom fixtures and fittings cartel have been published in the Official Journal. The appellants allege that the General Court made a number of errors of law, specifically, in concluding that there had been a single and continuous infringement. 
  • Details of appeals by Total SA and its subsidiary Total Marketing Services against the General Court judgments on their actions to challenge the European Commission's decision on the paraffin wax cartel have been published in the Official Journal. Amongst the claims made, Total SA alleges the General court erred in law when modifying the joint and several nature of the liability of it and the subsidiary, whilst Total Marketing Services alleges that the General Court had not taken account of the European Commission’s alleged failure to examine evidence of Total Marketing Services' competitive behaviour on the market. 


UK Courts
  • The Court of Appeal has delivered its judgment on BT’s appeal and Sky’s cross appeal against a judgment of the CAT, which upheld Sky's appeal against Ofcom’s 2010 Pay TV Statement. The Court of Appeal held that the CAT was correct in ruling that s316 of the Communications Act 2003 gave Ofcom jurisdiction to impose the wholesale must offer obligation condition on Sky. However, the Court of Appeal held that the CAT should have considered further Ofcom’s conclusion that that the rate-card price and the effect of the penetration discounts proposed by Sky gave rise to competition concerns and remitted the matter to the CAT for further consideration.
Competition Appeal Tribunal
  • The CAT has published an order withdrawing the damages claim brought by Emerson Electric and Valeo against SGL Carbon SE in relation to the carbon and graphite cartel on the basis that the parties have reached a confidential settlement. 
Competition Commission

• The CC accepted final divestment undertakings in respect of the completed acquisition by Cineworld Group plc of City Screen Limited. The CC considered that the merger has or could result in a substantial lessening of competition in the market for cinema exhibition services in the Aberdeen, Bury St Edmunds and Cambridge areas. Under the undertakings the parties agree to divest either a Cineworld or City Screen cinema in each of Aberdeen, Bury St Edmunds and Cambridge to a purchaser that had been approved by the CC. 

• The CC has announced its provisional findings on the completed acquisition by Breedon Aggregates Limited of certain Scottish assets of Aggregate Industries UK Limited, provisionally concluding that the transaction gives rise to a substantial lessening of competition for asphalt in the Aberdeen and Inverness areas and ready mix concrete in the Peterhead area. The CC considers that the merger could lead to higher prices for these products in these areas due to the loss of competition and lack of other suppliers. 

• As part of its market investigation into the supply of payday lending in the UK, the CC has published a further working paper relating to the size and concentration of the payday lending sector.


• The OFT has announced that ITV plc (supported by STV and UTV), have requested the review of certain parts of the undertakings which had been accepted as a condition to the merger of Carlton Communications Plc and Granada Plc (forming ITV). ITV has requested a review of paragraph 2 of the undertakings (concerning the networking arrangements between the regional Channel 3 licensees) on the basis that there have been significant changes of circumstances which mean that certain parts of paragraph 2 (relating to programme compliance and provision of monthly reports) are no longer required. Upon review, the OFT will advise the CC as to whether the undertakings need to be varied or suspended by a new enforcement undertaking. 

• The OFT has published the full non-confidential text of its infringement decision on collusive tendering in the supply and installation of certain control and alarm systems to retirement homes. 

• The OFT has published the full non-confidential versions of its infringement decisions finding that Mercedes-Benz and five of its commercial vehicles dealers infringed competition law.

This article was written by Paul Stone.  

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