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Focus Antitrust - 27 November 2014

27 November 2014

In The News

General Court dismisses Orange’s appeal against Commission’s inspection decisions

The General Court has dismissed Orange’s appeal against the European Commission’s decisions to conduct inspections at the premises of Orange and its subsidiaries, as part of its investigation into suspected breaches of Article 102 TFEU in the internet connectivity sector. The General Court did not consider the Commission's inspection decisions to be disproportionate, unnecessary or arbitrary and confirmed that despite the French competition authority not having found evidence of infringement on its inspection, the Commission was not bound by decisions of national courts or authorities pursuant to Articles 101 and 102 TFEU. The Commission is therefore entitled to take decisions, even where they conflict with a national decision.

ECJ reduces fines on Guardian for participation in flat glass cartel

The ECJ has delivered its judgment on Guardian’s appeal against the General Court's judgment that dismissed their appeal against the European Commission's decision fining them for participation in the flat glass cartel. The ECJ considered that although the long duration of the General Court proceedings could not be justified, a claim for compensation must be brought before the General Court rather than the ECJ. However, the ECJ did uphold Guardian's appeal alleging unequal treatment, ruling that in assessing the turnover that derives from the sale of products that are the subject of the infringement, no distinction can be drawn between internal sales and sales to third parties. The General Court's judgment on this point was set aside and the fine imposed on Guardian was reduced to €103.6 million.

Ofcom opens Competition Act investigation into the sale of live UK audio-visual media rights to Premier League matches

Following a complaint from Virgin Media that the arrangements for "collective" selling of live UK television rights by the Football Association Premier League Limited (FAPL) breaches competition law, Ofcom has opened an investigation into whether the FAPL’s joint selling arrangements for live UK audio-visual media rights to Premier League (PL) matches have as their object or effect the restriction or distortion of competition in the UK and/or the EU, contrary to the Chapter I prohibition of the Competition Act 1998 and/or Article 101(1) TFEU. Virgin Media alleges that the number of PL matches for which live broadcasting rights are made available is lower than other European leagues, thereby raising prices for consumers of pay TV packages that include premium sport channels and for the pay TV retailers of premium sports channels.



Articles 101 and 102
  • The European Commission has issued certain heavy and medium duty truck producers suspected of participating in an illegal cartel in the trucks sector with a statement of objections, following concerns that they may have agreed or coordinated their pricing behaviour in the EEA, contrary to Article 101 TFEU.
  • AG Wathelet has delivered his opinion on a reference for a preliminary ruling from the Regional Court of Dusseldorf, relating to the application of Article 102 TFEU to the enforcement of standard essential patents (SEPs) through injunctions. AG Wathelet considers that, where a SEP holder has committed to grant third parties a licence on fair, reasonable and non-discriminatory terms, yet fails to honour its commitment to enter into a FRAND licence, it would be an abuse of a dominant position for that SEP holder to then seek an injunction against an infringer of the SEP.
  • Details of an appeal by Teva against the European Commission’s decision to fine Teva for having entered into a "pay for delay" patent settlement agreement with Servier, in breach of Article 101 TFEU, have been published in the Official Journal. Teva argues that the Commission wrongly characterised the agreement as a restriction of competition by object, did not demonstrate that the agreement had restrictive effects and did not adequately consider the application of Article 101(3) of the TFEU.
  • Details of an appeal by the European Association of Euro Pharmaceutical Companies (EAEPC) against the European Commission’s refusal to further investigate alleged infringements of Article 101 TFEU in respect of Glaxo Wellcome's dual pricing system have been published in the Official Journal.
  • Details of an appeal by Trioplast Industrier against the European Commission’s decision to charge it interest for the late payment of a fine imposed in respect of the industrial bags carte have been published in the Official Journal.


  • The CMA has published a summary note of advice to public sector providers on how to avoid bid-rigging during the public sector procurement process.
  • The CMA has published guidance to lenders on the rights and obligations created by the Home Credit Market Investigation Order 2007 and the Home Credit Market Investigation Order 2007 Variation Order 2011, which implement the remedies required to address the adverse effects on competition and consumers that were identified in the CC’s home credit market investigation.
  • The Financial Conduct Authority has published the terms of reference of its market study to examine the credit card market, through which it aims to assess whether the market is working in the interests of consumers, by examining, in particular, the ease of switching.

For more information please contact Paul Stone, Partner

T: +44 (0)20 7203 5110