UK: Focus Antitrust

Last Updated: 18 October 2010
Article by Paul Stone and Elora Mukherjee

Chief Executive Designate appointed for the Competition and Markets Authority

Alex Chisholm has been appointed the new Chief Executive of the Competition and Markets Authority by the Business Secretary Vince Cable. Since October 2007 Mr Chisholm has been Commissioner at the Commission for Communications Regulation Ireland, and Chairperson of the Commission since February 2010. Since April 2011, Mr Chisholm has also served as Chair of the Economic Regulators Network in Ireland. Click here.

CAT upholds part of Tesco's appeal against the OFT's dairy decision

The CAT has issued its judgment on Tesco's appeal against the August 2011 OFT decision that found that a number of retailers, including Tesco, had indirectly exchanged their future retail pricing intentions in respect of British-produced cheddar and territorial cheeses, via their common suppliers, in breach of the Chapter I prohibition. The OFT found that Tesco had participated in two infringements, one in 2002 and the other in 2003, and fined it £9.55 million. The CAT dismissed Tesco's appeal as to liability as regards some parts of the 2002 infringement, but found that there was insufficient evidence to support the findings made by the OFT in respect of other parts of the 2002 infringement and set aside the OFT's findings in those respects. As to the 2003 infringement, the CAT found that there was insufficient evidence to support a number of the conclusions reached by the OFT and that none of the parts of the infringement were proved as against Tesco. The CAT, therefore, set aside the OFT's finding that Tesco had participated in the 2003 infringement. The CAT has invited further submissions as to the effect of its findings on the level of the financial penalty imposed on Tesco. Click here.

Competition Commissioner issues statement on Google abuse of dominance case

Joaquín Almunia, Vice President of the European Commission responsible for Competition Policy, has announced that, following a meeting with Eric Schmidt, executive chairman of Google, the European Commission has decided to continue with the process towards reaching an agreement for the submission of commitments by Google in order to close the Commission's Article 102 investigation. In May, the Commission identified four competition concerns relating to: the way in which Google's vertical search services are displayed within general search results as compared to services of competitors; the way Google uses and displays third party content on its vertical search services; exclusivity agreements for the delivery of Google search advertisements on other websites; and restrictions in the portability of AdWords advertising campaigns. On the basis of the progress made, the Commission expects Google to come forward with detailed commitment proposals in January 2013. Click here.

European Commission opens Phase II investigation into proposed acquisition of Mach by Syniverse

The European Commission has opened a Phase II investigation under the EU Merger Regulation into the proposed acquisition of Mach by Syniverse. The parties are both data clearing houses that settle the usage records of subscribers that roam on mobile operators' networks, allowing mobile operators to determine the wholesale payments they make to each other. The Commission's initial investigation caused it to have concerns that the merger may raise competition issues on various roaming technology markets. Click here.

Competition Commission prohibits AkzoNobel/Metlac merger

The Competition Commission has confirmed that the proposed acquisition by AkzoNobel of Metlac would result in a substantial lessening of competition in the supply of metal packaging coatings for beer and beverage cans in the UK. This confirms the Commission's provisional findings published in September 2012. In relation to the market for supply of coatings for food, caps and closures and general line metal packaging the Commission did not find that the merger may be expected to result in a substantial lessening of competition. This was a departure from the provisional findings, following more detailed analysis of competition in this market. The Commission has found that the only remedy likely to be effective is prohibition of the transaction. Click here.

European Commission sends Statement of Objections to Samsung on potential misuse of mobile phone standard-essential patents

The European Commission has informed Samsung of its preliminary view that Samsung's seeking of injunctions against Apple in various Member States on the basis of its mobile phone standard-essential patents amounts to an abuse of a dominant position prohibited by Article 102. The Commission's preliminary view is that, while recourse to injunctions is a possible remedy for patent infringements, such conduct may be abusive where standard-essential patents are concerned and the potential licensee is willing to negotiate a licence on Fair, Reasonable and Non-Discriminatory (so-called "FRAND") terms. Click here.

OFT refers Dorset hospitals merger to Competition Commission

The OFT has referred the proposed merger of two NHS foundation trusts located in Poole, Bournemouth and Christchurch to the Competition Commission for an in-depth investigation. This is the first merger between NHS foundation trusts examined by the OFT since the enactment of the Health and Social Care Act 2012, which confirmed the OFT's role in assessing the competition aspects of mergers involving foundation trusts. The OFT found that the trusts compete with each other in a number of specialties, both to attract patients and funding from commissioners. The OFT therefore decided on the basis of the evidence available, including advice from Monitor, that it could not rely on the potential benefits from the merger outweighing the potential impact on patients and commissioners of a loss of competition. Click here.


Articles 101 and 102

  • The ECJ has dismissed appeals against the General Court judgments that largely upheld the European Commission's decision on the Dutch beer cartel. Click here.
  • The European Commission has accepted commitments offered by Rio Tinto Alcan to address concerns raised by the Commission about competition on markets for aluminium smelting equipment. The Commission was concerned that the company may have infringed Articles 101 and 102 by contractually tying the licensing of its Aluminium Pechiney ("AP") smelting technology to the purchase of handling equipment (pot tending assemblies or "PTAs") from its subsidiary Electrification Charpente Levage. Rio Tinto Alcan has committed to modify its future technology transfer agreements to enable licensees of its AP technology to purchase PTAs from any recommended supplier. Click here.
  • The European Commission has accepted commitments from Thomson Reuters closing the Commission's Article 102 investigation. The Commission was concerned that Thomson Reuters may be in breach of Article 102 as a result of the restrictions imposed on its customers' use of Reuters Instrument Codes. Thomson Reuters has committed to offer a new licence to customers that will allow them to use the Codes for data sourced from competitors. The commitments also allow third parties to develop and maintain a switching tool that allows the Codes and rival services to interoperate. Click here.
  • The European Commission has invited interested parties to comment on commitments proposed by Lufthansa, United and Air Canada to address the Commission's competition concerns under Article 101 in relation their transatlantic cooperation. The Commission's concerns are that the cooperation may harm premium passengers on the Frankfurt-New York route because it could result in higher prices. The parties have offered to make landing and take-off slots available at Frankfurt and/or New York to facilitate the entry of competitors on this route. The parties have also offered to enter into fare combinability and special prorate agreements with competitors to enable them to offer tickets on their flights and facilitate access to connecting traffic. Click here.


Competition Appeal Tribunal

  • The Competition Appeal Tribunal has published a summary of an application by John Lewis for review of a decision by the OFT to accept undertakings from Dixons, Comet and Argos in lieu of referring the market for extended warranties on domestic electrical goods to the Competition Commission. John Lewis is challenging the OFT's decision that the extended warranties price comparison website established by the undertakings will not include certain John Lewis extended warranties. Click here.

Office of Fair Trading

  • The OFT is consulting on proposed undertakings in lieu of a reference to the Competition Commission in relation to the completed acquisition by Rexel UK Limited of certain assets of Wilts Wholesale Electrical Company Limited. Click here.
  • The OFT is consulting on proposed undertakings offered by Vue Entertainment International Limited in relation to its acquisition of Apollo Cinemas Limited. Click here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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