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Focus Antitrust - 2 July 2014

In the News

European Commission fines canned mushroom producers €32.2 million in cartel settlement

The European Commission has fined two producers of canned mushrooms a total of €32.2 million for participating in an illegal price-fixing and customer allocation cartel. The companies engaged in confidential information exchange and customer allocation, set minimum prices and agreed on volume targets.

The cartelists received a 10% reduction in their fines under the settlement procedure, whilst a third participant received full immunity from fines under the Commission's Leniency Notice for having revealed the existence of the cartel. Proceedings against a fourth producer, Riberebro, continue. 

CMA refers gym merger for Phase II investigation

The CMA has decided to refer the anticipated merger of Pure Gym Limited and The Gym Limited for a detailed Phase II merger inquiry due to concerns that the transaction would substantially lessen competition at a national level and in 14 local areas, and might also affect potential competition given that, absent the merger, the parties' expansion plans could have resulted in them competing in additional local areas.

The CMA did not consider that the undertakings in lieu offered by the parties were sufficient to resolve the competition concerns identified. This is the first time that the CMA has made such a merger reference and the statutory deadline for a final decision on the merger is 10 December 2014.


Articles 101 and 102
  • The European Commission has adopted a revised version of its notice on agreements of minor importance (the de minimis notice) and guidance on object restrictions. The revised de minimis notice clarifies that agreements which restrict competition by object do not benefit from the safe harbour provided by the de minimis market share thresholds – and explains that hard core restrictions that are listed in any of the block exemption regulations are generally considered to constitute restrictions by object.
European Courts
  • The ECJ has dismissed Nexans’ appeal against a General Court judgment that partially upheld a European Commission decision which authorised unannounced inspections in the electrical cables sector. The ECJ held that the General Court was right to consider that the Commission, by indicating that the suspected agreements had a global reach, had offered enough detail as to the geographic scope of the suspected cartel. The ECJ did not consider that the Commission was required to limit its investigations to documents relating to projects which had an effect on the internal market, given its suspicions that the infringement had a global reach.
  • The General Court has dismissed an appeal by Quimitécnica.com and José de Mello (who were fined for involvement in the animal feed phosphates cartel) against a European Commission decision which required them to provide a financial guarantee from a bank with long-term 'AA' rating. The General Court considered that the rating requirement for the bank issuing the guarantee was clearly designed to protect the financial interests of the EU. 
  • The European Commission has rejected the Dutch competition authority’s (ACM) request for a referral back of the proposed acquisition by Liberty Global of Ziggo for consideration under the Dutch merger control rules. The Commission considered that given its experience in assessing mergers in the converging media and telecommunications sectors, and to allow for a consistent application of the merger rules, it is better placed to examine the transaction than the ACM.


Competition and Markets Authority
  • The CMA has published its final decision confirming the original findings on Groupe Eurotunnel’s acquisition of certain assets of SeaFrance. The CMA concluded that, on the basis that the collection of tangible and intangible assets acquired meets the legal definition of an "enterprise" (ie together they constitute the activities or part of the activities of a business), two enterprises did cease to be distinct and the CC therefore had jurisdiction to review the merger.
  • The CMA has opened a new investigation under Chapter II of the Competition Act 1998 and Article 102 TFEU into a suspected breach of competition law in the pharmaceutical sector. The CMA's administrative timetable indicates that it will decide whether or not to proceed with the investigation in October 2014.
  • The CMA has published a Memorandum of Understanding between itself and the Financial Conduct Authority, setting out how they will cooperate on competition issues.
  • The CMA has published a briefing note and an open letter to the motor industry regarding the lessons learnt from the commercial vehicles case (involving Mercedes-Benz and five of its commercial vehicle dealers who were fined for engaging in unlawful cartel activity) about cartel enforcement and compliance with the law.  
  • The CMA has revoked an initial enforcement order which was addressed to Oasis Healthcare Group Limited (Oasis Healthcare) and Oasis Dental Care (Central) Limited in relation to the completed acquisition by Oasis Dental Care (Central) Limited of Apex Holding Limited. The CMA decided to revoke the order in view of Oasis’s submissions on the disproportionality of the order and the evidence available to the CMA at the current stage of its investigation.

This article was written by Paul Stone and Elora Mukherjee.  

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