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Focus Antitrust - 30 April 2014

In the News

European Commission issues Motorola and Samsung decisions on standard essential patents

The Commission has adopted decisions in the Motorola and Samsung cases relating to the enforcement of standard essential patents (SEPs). The two decisions relate to how EU competition rules apply in a situation where a licensor has committed to license its SEPs on fair, reasonable and non-discriminatory (FRAND) terms and then seeks an injunction preventing their use.

The decisions confirm the Commission’s view that the seeking of an injunction in this situation may amount to the abuse of a dominant position when the potential licensee is willing to enter into a licence on FRAND terms.

In the Motorola case, the Commission concluded that a potential licensee is to be considered willing if, in case of dispute, it agrees to a determination of FRAND terms by a Court. As the potential licensee had agreed to such a determination in that case, Motorola was held to have abused its dominant position.

However, it was not fined because this is the first decision of the Commission that has considered these issues. In the Samsung case, the Commission has accepted commitments from Samsung not to seek injunctions for five years in Europe on the basis of SEPs for smartphones and tablets against any potential licensee who agrees to accept a specified licensing framework.

This licensing framework consists of a mandatory negotiation period of up to 12 months and, if the negotiation fails, a determination of FRAND terms by a third party – either by a court or arbitration. The commitments also include the appointment of an independent monitoring trustee. 

European Commission opens Phase II investigation into proposed acquisition of Holcim assets by Cemex

The European Commission has opened a Phase II merger investigation into the planned acquisition of the Spanish operations of Swiss building materials group Holcim by Cemex.

Both companies are global suppliers of cement and other building materials and the Commission has concerns that the transaction may reduce competition in certain areas of Spain where the two companies' activities overlap.


Articles 101 and 102
  • The Advocate General’s opinion has been handed down in relation to the appeal by Guardian Industries Corp and Guardian Europe Sarl (Guardian) in relation to the flat glass cartel decision. The Advocate General has concluded that the General Court erred in upholding the Commission’s decision to exclude internal sales when calculating the total value of the market, which discriminated against Guardian as the only non-vertically integrated operator. The Advocate General therefore concluded that Guardian’s fine should be reduced from EUR148 million to EUR93.24 million. 
  • The European Commission has cleared the proposed acquisition of DuPont's Glass Laminating Solutions/Vinyls (GLSV) business by Kuraray. The clearance is conditional on the divestment of GLSV's PVB film production facility in Uentrop (Germany). The Commission was concerned that the merged entity would face insufficient competitive constraints for the supply of PVB film for architectural applications in the European Economic area (EEA) and considers that the divestment will address these concerns.



Competition Appeal Tribunal
  • The CAT has handed down its ruling on Ryanair’s application for permission to appeal against the CAT's judgment which upheld the Competition Commission's final report on the completed acquisition by Ryanair of a minority stake in Aer Lingus. Ryanair applied for permission to appeal on three grounds. The CAT has granted permission on two of the grounds, relating to alleged errors by the CAT in considering issues of procedural fairness as to the disclosure of information by the Competition Commission and in considering the EU duty of sincere co-operation. However, the CAT refused permission for the third ground, which relates to an alleged error by the CAT as to the test that the Competition Commission should apply when imposing a remedy. The CAT also refused an application by Aer Lingus for costs, holding that there were no reasons to justify departing from the general rule that interveners bear their own costs.
Competition and Markets Authority
  • The CMA has published its Memorandum of Understanding with the Serious Fraud Office (SFO) setting out how the two authorities will co-operate to investigate and/or prosecute individuals in respect of the criminal cartel offence, established by section 188 of the Enterprise Act 2002.
  • The CMA has published its issues statement as part of its inquiry into the completed acquisition by Alliance Medical Group Limited of the assets of IBA Molecular UK Limited used to produce Fluorodeoxyglucose 18F.
  • The CMA has published its issues statement as part of its inquiry into the proposed acquisition by Omnicell, Inc./MTS Medication Technologies, Inc. of SurgiChem Limited from Bupa Care Homes (CFG) plc.

This article was written by Paul Stone.  

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