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Focus Antitrust - 27 May 2015

27 May 2015

In The News

General Court rules for the first time on the relationship between the standard procedure and the settlement procedure

The General Court has dismissed an appeal by Roullier against the European Commission’s 2010 decision on the phosphates price-fixing cartel.  Unlike the other parties to the decision, Roullier did enter into a settlement with the Commission after having been informed of the approximate amount of the fine that the Commission intended to impose upon it, and so the Commission concluded its investigation under the standard procedure.  Roullier’s appeal argued that its fine should be reduced, on the basis that the fine was higher than the maximum figure envisaged during the settlement discussions.  However, the court found that the Commission is not bound by the fine range indicated as part of the settlement procedure and that the Commission had applied the same method for calculating the fine range at the settlement stage as it had as part of the standard procedure.  Click here.

Court of Appeal dismisses appeal against the CMA’s private healthcare market investigation  

The Court of Appeal has dismissed an appeal by private healthcare operator HCA against a decision of the Competition Appeal Tribunal, which ruled that the remittal of the private healthcare market investigation could be carried out by the same inquiry group at the CMA that carried out the original investigation.  The court found that, although the CMA had behaved inappropriately and unfairly towards HCA in failing to disclose a revised price analysis, it was nevertheless appropriate to remit the matter to the original inquiry group of the authority.


Articles 101 and 102
  • The Advocate General’s opinion has been issued on the appeal by AC Treuhand against the General Court judgment that dismissed its action to challenge the European Commission's heat stabilisers cartel decisions.  The Advocate General considers that the appeal should be upheld on the grounds that the General Court erred in upholding the Commission's finding that AC Treuhand had directly participated in the cartel by virtue of its administrative role in the organisation and conduct of cartel meetings. The Advocate General considered that AC Treuhand acted in its capacity as a consultancy firm and was clearly not active, nor potentially active, on the relevant markets as regards the applicable cartel decisions. Click here.
  • The Advocate General’s opinion has been issued on a reference from a Danish court on a series of questions relating to the assessment of rebate schemes under Article 102.  The Advocate General considers that a rebate scheme operated by a dominant undertaking constitutes abuse within the meaning of Article 102 where an overall assessment of all the circumstances of the individual case shows that the rebates are capable of producing an economically unjustified exclusionary effect.  She also considers that, although it is not a requirement to use a price/cost analysis such as the as-efficient-competitor test, national competition authorities and courts are free to do so, unless it would be impossible for another undertaking to be as efficient as the dominant undertaking.  Click here.


  • The CMA has published an update on its criminal cartel investigation into the supply of galvanised steel tanks for water storage.  Following a pre-trial hearing on 19 May 2015 at Southwark Crown Court, the trial of Clive Dean and Nicholas Stringer is due to begin on 1 June 2015.  Click here.
  • The CMA is inviting comments on whether to open a review into the Northern Ireland PCA Banking Market Investigation Order 2008.  Click here.
  • The CMA has welcomed the Court of Appeal verdict in the private healthcare case (see above).  Click here.
  • The CMA has published an updated issues statement as part of its investigation into the supply of personal current accounts and retail banking services to SMEs.  Click here.
  • The CMA has provisionally found that Reckitt Benckiser’s anticipated acquisition of the K-Y brand could lead to higher prices for personal lubricants.  Click here.
  • The CMA has gained a power to make written recommendations on proposals for legislation.  Click here.
  • Greene King has offered undertakings to address the CMA’s competition concerns in relation to its anticipated acquisition of Spirit Pub Company.  Click here.