UK: Focus Antitrust - Competition Weekly Email Alert - 27 February 2013

Last Updated: 6 March 2013
Article by Paul Stone and Elora Mukherjee

In the News

OFT settles Tesco dairy investigation appeal

The OFT has announced that Tesco's appeal in relation to the OFT's 2011 Dairy Retail Price Initiatives decision has been brought to an end by a consent Order of the Competition Appeal Tribunal as agreed between the parties. Under the terms of the Order, Tesco’s fine will be reduced from £10.5 million to £6.5 million. The Order follows the CAT's judgment issued on 20 December 2012 in relation to Tesco's appeal against the OFT's decision. The CAT’s judgment upheld the OFT's findings that Tesco committed three infringements of the Chapter I prohibition by co-ordinating increases in the prices consumers paid for cheese in 2002. However, the CAT overturned the OFT’s findings in relation to a number of other alleged infringements. Click here.

OFT settles commercial vehicles case

The OFT has announced that Mercedes-Benz and three of its commercial vehicle dealers, Ciceley, Road Range and Enza, have admitted infringing the Chapter I prohibition and agreed to pay fines totalling £2.6 million. A further dealer, Northside, was the first company to come forward after the investigation commenced and has been granted immunity from fines under the OFT's leniency policy. The nature of the infringements varies but all contain at least some element of market sharing, price coordination or exchange of commercially sensitive information. Click here.

European Commission consults on revised technology transfer block exemption and guidelines

The European Commission is inviting comments on revised drafts of the block exemption regulation for technology transfer agreements and the accompanying guidelines. Technology transfer agreements are agreements where a licensor permits a licensee to exploit patents, know-how or software for the production of goods and services. The Commission is proposing some changes to the current regime. In particular, certain types of agreements or clauses, such as the possibility to terminate an agreement if a licensee challenges the validity of the IPR, would no longer be automatically exempted but would have to be assessed on a case-by-case basis. The Commission also proposes to update the guidelines, in particular to include new provisions on patent pools. Replies to the consultation can be submitted until 17 May 2013. Click here.

Competition Commission issues adverse provisional findings in audit market investigation

The Competition Commission has provisionally concluded that competition in the audit market is restricted by factors which inhibit companies from switching auditors and by the tendency for auditors to focus on satisfying management rather than shareholder needs. The Commission is now exploring a number of possible remedies including mandatory tendering, mandatory rotation of audit firm and strengthened accountability of auditors to companies’ audit committees. Click here.

Interim injunction refused in refusal to supply case

The High Court has refused an application for an interim injunction in a case alleging that the defendant had abused its dominant position by refusing to supply patented medical products. The defendant had been supplying the products on the basis that they were being used by the claimant to provide homecare services. Having found out that the claimant was also acting as a wholesaler, the defendant refused to supply beyond the level that the claimant needed to meet its NHS contracts. The claimant applied for an interim injunction requiring deliveries of a certain amount of the products until trial. The High Court rejected the application on the basis that it considered the claimant did not have a realistic prospect of establishing that the defendant had a dominant market position, having failed to provide sufficient evidence to demonstrate that a significant proportion of patients could not switch from the defendant's products. The High Court also concluded that there was no realistic prospect that the claimant could establish abuse, as the defendant's policy and practice was not to supply wholesalers; and this was not a case where a supplier was discontinuing supplies to a long standing customer who was abiding with regular commercial practice and whose orders were not out of the ordinary. Click here.


Articles 101 and 102

  • The ECJ has handed down a ruling on a preliminary reference in relation to the term "premises and land from which the buyer has operated during the contract period" used in the old vertical agreements block exemption. The ECJ considered that the words referred to the part of a building or parcel of land from which the contract goods or services were sold, and so could not extend to the entire territory assigned to a franchisee under a contract. Click here.


  • The European Commission has agreed to amend the merger commitments given in relation to the Gaz de France/ Suez merger. Click here.


Office of Fair Trading

  • The OFT has accepted undertakings offered by Nakano UK Holding Limited to sell its Burntwood vinegar plant in Staffordshire to Baxters Food Group Limited to remedy concerns arising from its completed acquisition of the vinegar and pickles businesses of Premier Foods Group 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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