On November 3, 2019, the Commission opened a formal investigation of potential anticompetitive coordination between two French supermarket chains, Casino and Intermarché. The Commission suspects that the parties’ 2014 joint purchasing alliance, Intermarché-Casino Achats, might have led to them colluding in certain downstream markets, in particular on the development of shop networks and consumer pricing.[1] The Commission’s decision to open an investigation follows the dawn raids that it carried out in May 2019 in cooperation with the French Competition Authority, as reported in our May EU Competition Law Newsletter.
The Court Of Justice Issues Judgments In Four Power Cables Cases
In November 2019, the Court of Justice issued judgments in four cases arising out of the Commission’s 2014 decision in Power Cables. In the decision, the Commission found several European, Japanese, and Korean high-voltage power cables producers to have engaged in a cartel and imposed fines totaling €302 million.[1] The scope of the infringement included both the power cables and their accessories. Most of the addressees challenged the decision in the General Court, in each case unsuccessfully, and subsequently in the Court of Justice. This month, the Court of Justice rendered judgments on the appeals filed by ABB Ltd and ABB AB (“ABB”), Silec, Brugg Kabel, and LS Cable, partially upholding ABB’s appeal while dismissing the other three appeals.[2]
The Commission Approves Vodafone’s Acquisition Of Liberty Global’s Cable Business Subject To Cable Access Remedies, A First In The Industry
On October 30, 2019, the Commission published its July 2019 decision to conditionally approve the acquisition by Vodafone of Liberty Global’s cable business in Germany, the Czech Republic, Hungary, and Romania, following an in-depth Phase II investigation.[1] The decision marks the first-ever cable access commitment approved by the Commission in the telecommunications sector.
The Commission Publishes Its Decision To Fine Canon For Gun-Jumping
On October 22, 2019, the Commission published its decision to fine Canon a total of €28 million for failure to file its acquisition of Toshiba Medical Systems Corporation (“TMSC”).[1] Canon acquired TMSC via a warehousing arrangement, which involved a special purpose vehicle (“SPV”) that held most of TMSC’s shares pending merger control approval.
The Court of Justice Upholds Dismissal Of Alcogroup’s Appeal Concerning Access To Legally Privileged Documents During A Dawn Raid
On October 17, 2019, the Court of Justice upheld the General Court’s judgment of April 10, 2018, dismissing ethanol producer Alcogroup’s appeal against a Commission decision to carry out a dawn raid during which the Commission allegedly read potentially legally privileged documents.[1] According to the Court of Justice, irregularities during a dawn raid may only result in the annulment of subsequent Commission decisions and not the prior decision authorizing the dawn raid in question. This judgment highlights the need for legal counsel to closely monitor dawn raids, to ensure that Commission officials do not read or seize legally privileged documents.
Working Group On Competition Law Discussed Changes To The European Vertical Block Exemption Regulation
On October 10, 2019, the Working Group on Competition Law held its annual meeting in Bonn. The FCO and more than 120 competition law experts discussed revisions to the European Vertical Block Exemption Regulation (“VBER”)[1] in light of the digital transformation of the economy.[2] In preparation for this meeting, the FCO had published a comprehensive background paper,[3] setting out the need for adaption and possible adjustments to the VBER to address online distribution and other challenges posed by the digital transformation of the economy.
The Commission Unconditionally Approves BM’s Acquisition Of Celgene
On October 10, 2019, the Commission published its decision of July 29, 2019, to unconditionally approve Bristol-Myers Squibb Company’s (“BMS”) acquisition of Celgene Corporation (“Celgene”) following a Phase I review.[1] BMS and Celgene are global pharmaceutical companies.
The General Court Rules on Two Commission State Aid Tax Decision: Annuls Decision Against Starbucks, Upholds Decision Against Fiat
On September 24, 2019, the General Court ruled on the appeals against two of the Commission’s decisions ordering recovery of illegal state aid in back taxes that the Netherlands and Luxembourg allegedly provided to Starbucks Manufacturing EMEA BV (“Starbucks”) and Fiat Chrysler Finance Europe (“Fiat”) respectively.[1]
The General Court Renders Two Rulings Relating to the Transparency of the Commission Imposed Cartels Fines
On September 24, 2019, the General Court annulled a €33.6 million fine imposed on HSBC for its participation in the euro interest rate derivatives cartel,[1] and on the same day the General Court rejected Printeos’ appeal against the re-imposed fine for its participation in the envelope cartel.[2] Both cases relate to the methodology the Commission applied in calculating the fines and its transparency in that regard.
Commission Approves The Acquisition Of Innogy By E.ON Subject To Commitments
Following a public consultation launched in July 2019,[1] the Commission adopted a guidance document[2] on the protection of confidential information in proceedings for the private enforcement of EU competition law based on the Antitrust Damages Directive (“ADD”).[3] The Confidentiality Guidance is intended for use by national courts to ensure consistency across Member States regarding access to and the protection of confidential information disclosed in private enforcement proceedings. The Communication is not binding and does not modify the rules applicable in different Member States, but rather outlines a number of measures and tools national courts may employ to help protect confidential information.