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Focus Antitrust - 27 November 2013

In the News

Commission opens investigation into container liner shipping companies

The European Commission has opened formal proceedings against several container liner shipping companies, who, since 2009, have been making regular public announcements of price increase intentions. The Commission will now investigate whether this behaviour amounts to a concerted practice, in breach of Article 101 TFEU. 

ECJ dismisses appeals in industrial bags cartel

The ECJ has dismissed the appeals by Groupe Gascogne SA, Gascogne Sack Deutschland GmbH and Kendrion NV against the General Court’s judgments in respect of the European Commission's decision on the industrial bags cartel. The ECJ held that the Commission was free to hold Groupe Gascogne and Kendrion liable for the infringement committed by their subsidiaries. Further, the ECJ considered that the Commission had been entitled to impose a higher fine on Kendrion than that imposed on its subsidiary since, at the time of the Commission’s decision, the companies did not form part of the same undertaking, which meant that the maximum limit on fines of 10% of turnover had to be calculated separately for each. However, the ECJ held that the excessive length of the proceedings before the General Court had breached the parties’ right to have their cases heard within a reasonable time, and could give rise to liability on the part of the European Union for the damage arising from it. Any claim for damages should be brought before the General Court itself. 


European Courts

Details of a request for a preliminary ruling by a German court on questions in respect of the apportionment of fines imposed by the European Commission have been published in the Official Journal. The ECJ has been requested to consider whether the Commission’s decision should state what shares of the fine should be apportioned to the individual joint and several debtors, and, if not, whether the fine should be paid in equal shares or left to the national courts to determine apportionment. 


The European Commission has decided to grant conditional approval to the acquisition of Life Technologies Corp by Thermo Fisher Scientific Inc., having found that the transaction could serve to reduce competition significantly in the EEA markets for the production and supply of media and sera for cell culture, gene silencing products and polymer-based magnetic beads. Thermo Fisher has committed to divest a number of businesses in order to address the Commission’s concerns.


UK courts

The Court of Appeal has refused permission for SGL Carbon SE and Mersen SA to appeal against the CAT’s decision to lift the stay on actions brought by UK claimants against participants in the carbon and graphite products cartel. The Court of Appeal did not consider that any of the arguments raised by the appellants (in particular, on the CAT’s interpretation of Article 5(3) of the Brussels Regulation) had a reasonable prospect of success. 

Competition Appeal Tribunal

The CAT has dismissed an appeal by Colt Technology Services, challenging certain aspects of Ofcom’s decision in its final statement on its business connectivity market review. In particular, it claimed that Ofcom had wrongly decided not to impose passive remedies on BT in addition to a price control. The CAT held that Ofcom had tackled the question of passive remedies following genuine consultation with stakeholders on this issue and concluded that Ofcom's judgment, as an expert regulator, that passive remedies were inappropriate in the particular circumstances of this market review, should not be challenged

The CAT has published a reasoned order on the future conduct of the claims by the UK claimants in the Deutsche Bahn and others v Morgan Crucible and others damages action. The CAT has set a new timetable for the filing and service of defences to the UK claims and for the UK claimants’ replies to those defences. 

Competition Commission

The CC has published its final report on the completed acquisition by Optimax Clinics Limited of Ultralase Limited, confirming its provisional findings that the merger would not be likely to give rise to a substantial lessening of competition in any market in the UK. 


The OFT is considering whether to accept undertakings offered by Diageo plc in lieu of referring its completed acquisition of United Spirits Limited to the CC. Since the parties are two of the leading suppliers of blended bottled whisky in the UK, the OFT considers that the merger may lead to a substantial lessening of competition in the supply of bottled blended whisky to retailers. Diageo has offered to divest most of the acquired Whyte & Mackay business in order to address the competition concerns. 

For more information please contact Paul Stone, Partner

T: +44 (0)20 7203 5110