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Focus Antitrust - 19 March 2014

In the News

General Court issues judgments on information requests in the cement cartel case

The General Court has delivered its judgments on appeals by Cemex, Holcim AG and Holcim Ltd, Cementos Portland Valderrivas, Buzzi Unicem, HeidelbergCement and Italimobiliare against the European Commission’s decision to request information under Article 18 of Regulation 1/2003.

Amongst the claims put forward, it was alleged that the Commission’s information request decision exceeded the Commission's powers, was disproportionate and was unrelated to the investigation. The General Court dismissed the appeals in their entirety, confirming that the Commission is entitled to decide what information it considers necessary when carrying out an investigation, provided that the information could reasonably be expected to assist in its determination as to whether the alleged infringement took place.

The General Court also confirmed that the Commission is not obliged to possess information establishing the existence of an infringement before sending a request for information, it being sufficient that the Commission has reasonable suspicions of a breach of the EU competition rules. The General Court did, however, partially uphold the appeal by Schwenk Zement, on the basis that the Commission had imposed a disproportionate two-week deadline for the provision of certain information. 

OFT refers acquisition of Surgichem by Omnicell/MTS Medication Technologies to Competition Commission

The OFT has decided to refer the anticipated acquisition of Surgichem Limited by Omnicell/MTS Medication Technologies to the CC. The OFT was concerned that the merger would lead to possible increased prices and/or a worsening of services to pharmacies for 'adherence packaging' products (used to repackage a patient's pharmaceutical medicine requirements).


Articles 101 and 102
  • Details of a reference from a Danish court to the ECJ on the application of Article 102 TFEU to rebate schemes have been published in the Official Journal. The main question relates to which factors should be taken into account in assessing whether the application by a dominant undertaking of a rebate scheme with a standardised volume threshold constitutes an abuse contrary to Article 102 TFEU. 
  • The European Commission has conditionally approved the acquisition of Mivisa by Crown. The Commission initially identified competition concerns in the markets for metal food cans in the Benelux, France, Spain and Portugal, concluding that the transaction would eliminate a significant competitor and that the merged entity would not face sufficient competitive constraint from remaining suppliers. Crown has agreed to divest its plants producing metal cans in Spain and Mivisa's metal food cans plant in the Netherlands in order to address these concerns.
  • The European Commission has approved the acquisition of joint control over NATS (a UK company providing airport traffic services), by USS (a UK-based pension fund) together with the UK based airline companies British Airways, easyJet and Monarch, and the UK Secretary of State for Transport who is responsible for setting the national aviation policy. The Commission did not consider that the transaction would raise any competition concerns since the market structure would not be significantly altered.



Competition Appeal Tribunal
  • The CAT has published notices of application for review of the CC’s decisions in its final report on the aggregates, cement and ready-mix concrete (RMX) market investigation, lodged by Lafarge Tarmac and Hope Construction Materials (HCM). Amongst its complaints, Lafarge Tarmac alleges that the CC has breached the principles of procedural fairness, failed to offer reasoning for its finding of an adverse effect on competition through co-ordination by the companies and acted disproportionately in imposing divestment requirements. HCM claims that the CC acted irrationally in deciding that Lafarge may not divest its cement plant to an existing GB cement producer. 
  • The OFT is consulting on its intention to accept proposed commitments from Certas Energy UK Limited and its parent company DCC Plc, to address concerns that Certas may have abused a dominant position in respect of the supply of road fuels to filling stations in the Western Isles. The proposed commitments will bring an end to contracts which require filling stations on the islands to buy fuels exclusively from Certas for five years. The commitments are also intended to open up access to Certas' marine terminal in Loch Carnan, in South Uist, to potential competitors to Certas for a period of five years, as well as opening up access to Certas' marine terminal in Stornoway, in the Isle of Lewis, until the end of 2017.
  • The OFT has published an evaluation of its decision to clear conditionally the Shell/Rontec merger in February 2012. The findings suggest that the OFT’s decision to suspend reference to the CC pending Shell’s divestment of six petrol forecourts was effective in counteracting price increases in those areas where the OFT had initially concluded that the merger gave rise to competition concerns. 
  • The CMA has published a second set of guidance documents providing clarity on the procedures it will follow when investigating and enforcing competition law.
  • Monitor (responsible for reviewing mergers between two or more NHS trusts) has published its report on the proposed merger of the pathology services of Brighton & Sussex University Hospitals NHS Trust and Surrey & Sussex Healthcare NHS Trust. Monitor considered that the merger is unlikely to lead to a loss of competition for pathology services, or reduce incentives for pathology providers to improve the quality and efficiency of their services.

This article was written by Paul Stone.  

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