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Focus Antitrust - 5 March 2014

In the News

ECJ rules on access to documents in gas insulated switchgear cartel

The ECJ has delivered its judgment on the European Commission’s appeal against the General Court’s annulment of a Commission decision refusing to grant EnBW access to documents relating to the gas insulated switchgear cartel investigation.

The ECJ has set aside the General Court's judgment, having found that the General Court had wrongly considered that the Commission was not entitled to rely on general presumptions about the application of the exceptions to disclosure in Article 4 of Regulation 1049/2001.

Rather, the ECJ held that the Commission can presume that disclosure of such documents will weaken the protection of the commercial interests of the undertakings involved in the proceedings. This general presumption can be rebutted by demonstrating that a specific requested document is not covered by the presumption, or that there is an overriding public interest in disclosure of the document. 

Visa Europe commitments about credit card inter-bank fees accepted by Commission

The European Commission has decided to accept commitments offered by Visa Europe to address concerns about its multilateral interchange fees for credit card payments in the EEA.

As part of its commitments, Visa Europe will cut its inter-bank fees to a level of 0.3% of the value of the transaction (a 40-60% reduction) and has agreed to measures to address concerns about the effect of its "cross-border acquiring" rules.

The commitments will apply for four years. 

General Court judgment on appeals in LCD cartel case

The General Court has delivered its judgments in the appeals brought against the European Commission’s decision in respect of a cartel in the LCD market by InnoLux Corporation, LG Display Co Ltd and LG Display Taiwan Co Ltd.

The General Court reduced the fine imposed on InnoLux from €300 million to €288 million on the basis that InnoLux had mistakenly provided erroneous sales data to the Commission, but had not sought to mislead the Commission.

The General Court further found that the Commission had wrongly taken January 2006 into account when calculating the value of LG Display's sales for the purpose of setting the fine to be imposed on them, despite having granted the company partial immunity for its participation in the cartel in 2006, and accordingly reduced the fine by €5 million. 


Articles 101 and 102
  • The ECJ has ruled on a preliminary reference from a Czech court on whether a member state is precluded under Article 102 TFEU from granting a copyright collecting society a territorial monopoly, which denies recipients of services a free choice of a collecting society from another member under. The ECJ held that the mere fact that a member state grants a collecting society a monopoly over the management of copyright relating to a category of protected works in its territory is not contrary to Article 102. However, where a collecting society that has been granted a monopoly imposes fees which are appreciably and consistently higher than those charged in other member states, that difference must be regarded as objective dissimilarities between the member states. 


Competition Commission
  • The Competition Commission has provisionally concluded that the proposed merger between Ericsson and Creative Broadcast Services Holdings (2) Limited (Creative) is unlikely to result in a substantial lessening of competition in the market for the supply of outsourced linear playout services for channels broadcast in the UK. Despite the merger removing one significant competitor for broadcaster customers with complex requirements, the Commission concluded that it is unlikely that there will be an adverse effect, given the competitive tender processes these customers follow and the potential for other competitors to exert the same level of competitive constraint as the merging parties. One of the group members disagrees with this provisional conclusion and has issued a note of dissent.
Competition Appeal Tribunal
  • The CAT has consented to Hanson Quarry Products Limited’s withdrawal of its application for review of certain decisions taken by the CC in the aggregates, cement and ready-mix concrete market investigation. 
  • The OFT has commenced a market study into residential property management services, having widened its investigation to include residential property management services for properties where local authorities and housing associations are the freeholders, as well as those with private sector freeholders.
  • The OFT has published a report on the impact of its response to a super-complaint by Consumer Focus about the cash ISA sector.
UK Courts
  • The High Court has rejected MasterCard’s application for trial of a preliminary issue in a damages action brought by Sainsbury's Supermarkets Limited in respect of the alleged illegality of the MasterCard UK multilateral interchange fee (MIF). The issue related to whether the fact that Sainsbury’s had itself applied the MIF (through its banking business) meant that it was precluded from pursuing its action. The court ruled that the issues involved were likely to be complex and substantial, leading to significant expense and potential delay in the main trial.

This article was written by Paul Stone.  

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