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Focus Antitrust - 8 January 2014

In the News

OFT opens formal investigation into property sales and lettings and their advertising

The OFT has opened a formal investigation under Chapter I of the Competition Act 1998 into alleged anti-competitive agreements and/or concerted practices involving entities in the property sales and lettings sector. The investigation relates to the advertising of fee rates in media entities and the approach to each other's customers. The OFT has not reached a view as to whether there is sufficient evidence of an infringement of competition law for it to issue a Statement of Objections to any of the parties under investigation and estimates that it will take a decision on the next phase of the investigation during April 2014. 

Commission opens in depth investigation of German mobile merger

The European Commission has decided to initiate a Phase II merger investigation into the acquisition by Telefónica Deutschland of E-Plus, following concerns that the transaction may reduce competition in the markets for retail mobile telephony and for wholesale access and call origination in Germany. The parties are two of only four mobile network operators in Germany. 

ECJ dismisses appeals in gas insulated switchgear cartel case

The ECJ has dismissed appeals by Siemens AG, Mitsubishi Electric Corp. and Toshiba Corp. against the General Court judgments in actions brought against a European Commission decision that imposed fines on eleven groups of companies for infringing Article 101(1) TFEU by participating in the gas insulated switchgear cartel. The ECJ rejected claims that the General Court had erred in determining the duration of Siemens' participation in the cartel and in the calculation of the fine imposed on it. The ECJ also dismissed claims by Mitsubishi and Toshiba that the General Court had wrongly upheld the Commission's findings that they participated in the infringement and that their rights of defence had been breached. 



Articles 101 and 102
  • The ECJ has dismissed an appeal by Koninklijke Wegenbouw Stevin BV against a General Court judgment which dismissed its appeal against the European Commission's decision on the Dutch bitumen cartel. The ECJ rejected arguments that the General Court had erred in finding that KWS was leader of the cartel and that a consequent increase in its fine was justified.
  • The European Commission has accepted binding commitments from Deutsche Bahn to remedy concerns that its pricing system for providing traction current to railway companies may have resulted in a margin squeeze, contrary to Article 102 TFEU. The commitments would see the introduction of a new pricing system for traction current that would apply uniformly to all railway companies and which would involve Deutsche Bahn charging separate prices for electricity and for (regulated) access to the traction current grid without applying discounts. It will also grant electricity providers access to its network for supplying traction current. Further, for a period of one year, Deutsche Bahn will grant a 4% reduction on the price of traction current to all external railway companies based on their invoice of the preceding year. 



Following the initiation of a phase II investigation in October 2013, the European Commission has decided to reject a request by the German competition authority that the review of the proposed acquisition by Holcim of Cemex West be referred to it under Article 9(2)(a) of the EU Merger Regulation. The Commission has concluded that the geographic scope of the affected cement markets is wider than national and, as such, the conditions for making a reference under Article 9(2)(a) are not satisfied.


Competition Commission
  • The CC has published the final undertakings that it has accepted to prohibit the anticipated merger of the Royal Bournemouth and Christchurch Hospitals NHS Foundation Trust and the Poole Hospital NHS Foundation Trust. The CC decided that the proposed merger would give rise to a substantial lessening of competition in relation to the provision of a number of inpatient and outpatient services and concluded that the only effective remedy is to prohibit the merger. 
  • The CC has published the final undertakings that it has accepted in relation to the completed acquisition by Imerys Minerals Limited of the kaolin business of Goonvean Limited. Having found that the merger may be expected to result in a substantial lessening of competition in the market for the supply of kaolin for performance-mineral applications, where the parties were the only two significant suppliers to UK customers, the CC concluded that the most effective and proportionate remedy is the imposition of a five year price control remedy in relation to the supply of kaolin supplied for use in performance-mineral applications to existing customers. 
  • The CC has published its provisional decision on its review of the undertakings given by IMS Health Inc to the Secretary of State, subsequent to the Monopoly and Mergers Commission’s (MMC) 1999 report into IMS Health's acquisition of Pharmaceutical Marketing Services Inc. The purpose of the undertakings was to facilitate new entry by providers of pharmaceutical data services. The CC has provisionally concluded that, although of the release of NHS prescription data has led to a change of circumstances, IMS continues to face limited competition in this market. The CC considers that the NHS data is not sufficiently frequent or extensive for IMS’s competitors to use it as a data source and that, absent the undertakings, IMS could use its position to create bundled products and stymie any emerging competitors. As such, the CC has provisionally concluded that the undertakings should be retained.


  • The OFT has accepted initial hold separate undertakings from Fenland Laundries Limited, Micronclean (Newbury) Limited and Micronclean Limited, in respect of the completed acquisition by Micronclean Limited of Guardline Technology Limited. 
  • In August 2013, the OFT consulted on proposed commitments from Booking.com,Expedia and IHG, intended to address the OFT's concerns in relation to restrictions on the ability of online travel agencies to offer discounts for room only hotel accommodation bookings. Following this consultation, the parties have agreed to revise the commitments to clarify that hotels will be allowed to offer discounts in an equivalent manner to online travel agencies (OTAs). The duration of the commitments has also been reduced from three to two years. The OFT is now consulting on these revised commitments. 


The Financial Services (Banking Reform) Act 2013 was published on 19 December 2013. It contains provisions which afford the Financial Conduct Authority concurrent competition powers under Part 1 of the Competition Act 1998 and Part 4 of the Enterprise Act 2002 in relation to the financial sector. It also gives the Prudential Regulation Authority a secondary competition objective which requires it to facilitate effective competition when discharging its general functions in the markets for services provided by PRA-authorised persons. 

For more information please contact Paul Stone, Partner

T: +44 (0)20 7203 5110