There have been many relevant developments at a European level in the past few months regarding cartels, merger control, abuse of a position of power, and state aid. A brief list of the main cases is presented below.
The European Commission stole the limelight this summer by imposing a record cartel fine of EUR 2.9 billion on the “truck cartel”, but had to back down in other cases.
- Aircargo: after the General Court had overturned in late 2015 the fine order that the European Commission had imposed on the airfreight cartel, the Commission decided not to appeal that judgment. The Commission is expected to issue a new fine order. British Airways has meanwhile filed an appeal with the European Court of Justice. That appeal will delay the pending civil claims proceedings instituted against British Airways in the United Kingdom.
- Concrete: on 10 March 2016 the European Court of Justice overturned the ruling on a request for information of the Commission regarding an alleged concrete cartel. At the end of 2010 the Commission started an investigation into alleged price-fixing and market allocation agreements between concrete producers operating in Western and Central Europe. The request for information that the concrete producers in question received in that context was extremely detailed and was generally worded. According to the Court of Justice, the Commission had insufficiently explained the purpose of the request for information, despite being able to do so in light of the information already at its disposal. The Court of Justice thereby defined the thin line between a request for information of the Commission and an unauthorised fishing expedition.
- Trucks: on 19 July 2016 the Commission reported that MAN, Volvo/Renault, Daimler, Iveco and DAF had secretly made price-fixing agreements for trucks and had passed on the costs involved in complying with stricter emission rules. On that ground the Commission imposed a record fine of EUR 2.9 billion on participants in the truck cartel. Click here for an explanation (in Dutch only) of the settlement procedure with the truck makers in that case.
- Paramount: on 26 July 2016 the Commission accepted undertakings given by Paramount that removed the Commission’s competition law objections regarding various clauses in film licensing agreements for pay TV between Paramount and Sky UK. Paramount undertook no longer to contractually restrict broadcasting organisations such as Sky UK in offering films via satellite or online to consumers outside the United Kingdom and Ireland (known as geo-blocking). See http://www.ecommercesectorinquiry.com/ for more information on geo-blocking.
These past few months the European Commission has again demonstrated that it is able to prohibit mergers or to allow them only on certain conditions. The main examples are:
- Hutchison/O2: on 11 May 2016 the European Commission prohibited the acquisition of O2 by Hutchison. That merger gave rise to major objections on the part of the Commission, since it would reduce the number of independent mobile network operators (MNOs) on the British market from four to three. The acquisition would lead to insufficient competition on the British market and hinder innovation, because both O2 and Hutchison also had a network sharing agreement with one of the other two MNOs. The undertaking given by O2/Hutchison to create a new, fourth MNO on the British market would most likely have removed the Commission’s objections. See in this regard the course of events in the Hutchison/VimpelCom case, explained below.
- Sanofi/Boehringer Ingelheim: on 4 August 2016 the Commission conditionally approved the acquisition of Boehringer Ingelheim’s consumer health business. One of those conditions is that Sanofi and Boehringer Ingelheim must hive off activities in nine member states in Central and Eastern Europe; in the Commission’s opinion competition on the market for several pharmaceutical products in those Member States would otherwise be too greatly restricted.
- Hutchison/VimpelCom: on 1 September 2016 the Commission conditionally approved the joint venture of Hutchison and VimpelCom in Italy. One of those conditions is that the parties had to hive off sufficient activities to allow a competing provider to join the market.
The Commission is currently investigating several concentrations of which it remains to be seen whether they will be approved (without remedies), also in light of the Commission’s track record. To name a few examples:
- Dow/DuPont: on 11 August 2016 the Commission instituted a Phase II investigation into the merger of Dow and DuPont. It is investigating whether that merger does not too greatly restrict competition in crop protection products, seeds and certain petrochemical products.
- Deutsche Börse/London Stock Exchange: on 24 August 2016 Deutsche Börse and the London Stock Exchange reported their merger to the Commission. The Commission is therefore again investigating a major stock exchange merger. The Commission previously prohibited the concentration of Deutsche Börse and NYSE. The General Court upheld that prohibition in March 2015, thereby preventing the merger between Deutsche Börse and NYSE. The merger plans of Deutsche Börse and the London Stock Exchange are meeting with a great deal of resistance, e.g. in Belgium and France.
Abuse of a position of power
The Commission is making headway in the field of abuse of a position of power; complaints are in any event resulting in dominant companies changing their behaviour.
- Google Android: on 20 April 2016 the Commission notified Google of its objections regarding its Android operating system. The key question in that investigation is whether Google is hindering the development and market entry of competing mobile operating services. The Commission is arguing that Google is abusing its dominant position by linking the frequent use of Android to the use of other Google products, such as mobile apps. The Commission has explained the exact nature of its objections in this factsheet.
- Google Shopping: on 14 July 2016 the Commission also reported progress in its case against Google Shopping. In its press release the Commission stated that it had presented additional evidence in the investigation of Google’s price comparison service. The Commission is arguing in that case that Google is abusing its dominant position by treating its Google Shopping service more favourably than other online price comparison services. The Commission gave Google notice of its objections in that case on 15 April 2015. More information on this case can be found here.
- Internation Skating Union (ISU): in 2015 the Commission started an investigation in response to a complaint from skaters Tuitert and Kerstholt as to whether rules of the ISU prevented other skating organisations from competing with the ISU. Under the ISU’s rules in question skaters are permanently excluded from participation in the Winter Olympics and in the World and European Skating Championships if they participate in competitions not approved by the ISU. While the Commission is still investigating the case, partly based on breach of Article 102 of the TFEU, the ISU announced last July that it would allow commercial competition in the organisation of skating events. More information on this development can be found in this blog.
The Commission is also baring its teeth regarding the enforcement of the rules on state aid. It has already ruled in dozens of cases in 2016, but one case received more than average attention. The press release on 30 August 2016 in which the Commission reported that it had ordered Apple to repay tax benefits of EUR 13 billion, plus interest, to the Irish government caused a great deal of commotion. Euro Commissioner Verstager rejected the criticism that she was primarily targeting successful US companies. The Commission’s crackdown on tax benefits for multinationals in several Member States is not a new development, however. On 21 October 2015, for instance, the Commission ruled that Luxembourg and the Netherlands had granted selective tax benefits to Fiat Finance and Trade and to Starbucks. According to the Commission those tax benefits conflicted with the EU state aid rules. Apple announced that it would file an appeal and it would appear that the Irish government will do the same. In her speech of 2 September 2016 Euro Commissioner Verstager pleaded in favour of a general crackdown on unfair competition as a result of state aid in the form of tax benefits offered by EU Member States. The last word has not yet been spoken on this issue.