UK: Focus Antitrust: Competition Weekly Email Alert - 4 May 2011

Last Updated: 6 May 2011
Article by Paul Stone

In the News

The European Commission has opened two investigations into suspected breaches of Article 101 and/or Article 102 TFEU in the Credit Default Swaps (CDS) market. The first concerns the CDS information market, where the Commission is concerned that only one company (Markit) is being provided with essential information by the investment banks involved. It is examining whether this is the result of collusion or an abuse of collective dominance. The second is in relation to concerns that agreements between nine CDS dealers and ICE Clear Europe have the effect of market foreclosure. Click here.

The Supreme Court has refused permission for Safeway to appeal the Court of Appeal's ruling in Safeway Stores Limited & Others v Twigger & Others. The ruling held that fines imposed on an undertaking under the Competition Act 1998 are "personal" to that undertaking, such that undertakings cannot recover fines or the costs of an OFT investigation from employees or directors who carried out the infringing behaviour. Click here.

EU

European Courts

  • Prezes Urzędu Ochrony Konkurencji i Konsumentów v Tele2 Polska sp. zoo, now Netia SA w Warszawie. The ECJ has delivered its judgment on a reference from the Polish Supreme Court on the powers of national competition authorities. It held that, under Article 5 of Regulation 1/2003, NCAs do not have the power to take a decision finding that there has been no breach of Article 102 TFEU. Rather, their power is limited to the adoption of a decision stating that there are no grounds for action. A finding that there has been no breach of Article 102 can only be made by the European Commission, even if Article 102 is applied in a procedure undertaken by an NCA. Click here.

European Commission

  • The European Commission has published for consultation draft best practices for co-operation between national competition authorities in multi-jurisdictional merger cases, which fall below the thresholds of the EU Merger Regulation but require notification in several member states. Click here.

Article 101

  • Details of an appeal by LG Display Co. Ltd and LG Display Taiwan against the European Commission's decision that six manufacturers of LCD panels operated an illegal price-fixing and information exchange cartel have been published in the Official Journal. LG alleges that the Commission incorrectly calculated the fine imposed, that it was wrongly denied immunity from fines for 2005 (contrary to the Leniency Notice), and that the Commission erred in not granting an additional reduction in its fine for assistance which went beyond its obligations under the Leniency Notice. Click here.
  • The European Commission has opened an investigation into whether a settlement agreement in relation to patent infringement disputes in the UK and USA between the pharmaceutical companies Cephalon and Teva has the object or effect of hindering the entry of generic Modafinil in the EEA, contrary to Article 101 TFEU. Click here.

Mergers – Cleared

Mergers – Invitation to Comment

State Aid

  • A European Commission notice on state aid recovery interest rates and reference/discount rates for all 27 EU member states applicable as from 1 May 2011 has been published in the Official Journal. Click here.

Speeches

  • Joaquin Almunia: "Reforming EU State aid rules on public services: The way forward". Click here.

UK

Competition Appeal Tribunal

  • The CAT has dismissed two appeals brought by BT under section 192 of the Communications Act 2003 challenging Ofcom's jurisdiction to determine two disputes between BT and various communications providers in respect of BT's termination charges for calls to 080 numbers, and its charges for "Ethernet" facilities pending appeals before the CAT on overlapping issues. Click here.
  • The CAT has handed down its judgments on the appeals by North Midland Construction, AH Willis & Sons and GMI Construction against the OFT's decision in the construction cover pricing/ bid-rigging case. The CAT reduced the total fine imposed on North Midland from L1,543,813 to L300,000, and set aside the penalties imposed on AH Willis and GMI Construction. Click here, here and here.

Competition Commission

  • The CC has published draft merger procedural guidance for consultation. The guidance explains the main stages of a merger inquiry and the CC's procedures in relation to information gathering, assessment, the negotiation of remedies and the implementation of remedies. Click here.
  • The CC has published an initial draft of revised market investigation guidelines for consultation. The draft guidelines discuss the role and origin of market investigations, the meaning of "adverse effect on competition" and the CC's general approach to applying this test, remedies and procedures. Click here. "
  • Sector Treasury Services Ltd / Butlers: the CC has published an issues statement as part of its investigation into the completed acquisition by STS of Butlers, setting out the areas it intends to examine in relation to market definition, counterfactual and its current theory of harm. Click here.
  • Thomas Cook/Co-operative Group/ Midlands Co-operative joint venture: the CC has published an issues statement as part of its investigation into the joint venture Click here. " The CC has published its final report on its review of undertakings given by Kemira Growhow Oyj and Terra Industries Inc following the CC's 2007 report on the joint venture between the companies. Click here.
  • The CC has published guidance on telecommunications price control appeals under section 193 of the Communications Act 2003, following a review of the telecommunications price control appeal process. The guidance is intended to assist parties and their advisers involved in such appeals. Click here.

OFT

  • The OFT has decided to release General Healthcare Group Holding Partnership LLP (GHG) from the undertakings in lieu (given in relation to GHG's acquisition of four hospitals controlled by the Covenant Healthcare Group) requiring it to divest the Abbey Carrick Glen hospital. Click here.
  • Advent International Corporation / Priority Investment Holdings Limited: full text of clearance decision published. Click here.
  • MBL/ TrigoldCrystal: full text of decision to refer to the Competition Commission published. Click here.
  • Mergers – Invitation to Comment: Hanover Insurance Group, Inc / Chaucer Holdings plc; Asda Stores Limited / Kings Lynn store; Walstead / St Ives. Click here.

Ofcom

Ofcom has published a statement setting out guidance on the wholesale termination rates charged by landline operators for calls to geographic telephone numbers (01 and 02 numbers). 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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