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Competition Law Newsletter November 2014

Competition Law Newsletter November 2014

Competition Law Newsletter November 2014

01.11.2014 NL law

1.  Third parties have the right to access uncontested parts of cartel decisions

On 7 October 2014, the General Court ("GC") handed down a judgment in the hotly debated area of access to the file. Damage claimants are frequently seeking access to information contained in the Commission's file in order to substantiate their claims for damages. In this case, DB Schenker had requested the Commission access to the entire case file in the air cargo investigation, to the confidential version of the Decision or to the non-confidential version of the Decision on the basis of the Transparency Regulation (Regulation 1049/2001). After the Commission denied the requests, DB Schenker appealed to the GC. Seven air cargo carriers joined the proceedings as interveners on the Commission's side.

The GC's judgment held that third parties do not have the right to access the entire case file nor the confidential version of the Decision. Disclosure would undermine the protection of the commercial interests and the protection of the purpose of the investigation. The GC held that the Commission is not obliged to assess per individual document whether disclosure can be refused on these grounds, but that it is sufficient for the Commission to conclude that the documents in its file generally fall under these exceptions.

However, the GC confirmed that third parties do have a right to receive a non-confidential version of a Decision. A non-confidential version of a decision is usually drawn up one or two years after the decision is rendered. In this particular case, however, it has been four years since the decision was rendered, and the Commission still has not drawn up a non-confidential version. Absent a non-confidential version, the GC decided that the Commission has to grant the claimants at their request access to the uncontested parts of a cartel decision.

The judgment merely confirms the disclosure policy of the Commission under the Transparency Regulation.

Please note that the European Parliament has adopted a draft directive on antitrust damages earlier this year, dealing with access to file by national courts. (See Stibbe's article).

2. The Court of Justice dismissed ICF appeal in the aluminum fluoride cartel case

On 9 October 2014, the Court of Justice dismissed the appeal lodged by Industries Chimiques du Fluor (“ICF”) against the judgment of 18 June 2013, in which the General Court ("GC") rejected its application for annulment of the Commission’s decision concerning a worldwide price-fixing and market-sharing cartel on the aluminum fluoride market. Two legal points merit attention.

First, in the second ground of appeal, ICF criticized the GC for having misinterpreted paragraph 18 of the 2006 Guidelines on the method of setting fines. The GC interpreted the expression "the total value of the sales of the goods or services to which the infringement relates" as covering only the total value of the sales of the undertakings which participated in the infringement, and not as the total value of sales on that market. This is one of the first cases where the Court of Justice had to rule on that paragraph of the Guidelines.

The Court of Justice rejected the interpretation proposed by ICF, considering that it follows both from the text and the scheme of paragraph 18, as well as from the general scheme of the Guidelines that the expression "the total value of the sales of the goods or services to which the infringement relates" should be interpreted as referring to the total value of the sales of the undertakings having participated in the infringement, and not to the total value of the sales of all the undertakings active on the market upon which the undertakings concerned committed the infringement.

Second, the Court of Justice expressly recognized, in the line with its Gascogne case-law, that the excessive length of the proceedings before the GC (i.e., approximately 5 years), is a violation of Article 47 of the Charter of Fundamental Rights. However, the Court also confirmed that in order to obtain a compensation for the damage caused by such a violation, ICF should introduce an action for damages before the GC, adding that such a compensation cannot be directly obtained from the Court of Justice through an appeal against the judgment which was not given by the GC in a reasonable period of time.

3. GC annuled fine for Soliver in car glass cartel

On 10 October 2014, the General Court ("GC") struck down the Commission decision against Soliver NV (Case T-68/09) given that it had failed to establish that Soliver had participated in a single and continuous infringement of Article 101 TFEU in the automotive glass sector. The GC therefore annulled the EUR 4,396,000 fine imposed on Soliver.

According to well-founded case law, the GC found that the Commission had not established that Soliver knew or should have known that (i) "the collusion in which it was invited to participate formed part of the overall plan of that single and continuous infringement" and that (ii) Soliver was aware or should have been aware  "of the general scope and the essential characteristics of the cartel as a whole." Analyzing the evidence on which the Commission relied to reach its findings, the GC found that the documents produced did not demonstrate that Soliver was aware or should have been aware of the modus operandi of the cartel.

The GC further found that the Commission did not err in finding that Soliver had engaged in anti-competitive contacts. However, the Commission did not qualify the contacts as a separate infringement but instead considered the infringement as single and continuous. Soliver was therefore not in a position during the administrative procedure to defend itself against the allegation of separate infringements. The GC under these circumstances is not empowered to qualify the infringement as such. Therefore, the decision and fine against Soliver were annulled.

4. Bundeskartellamt published revised guidelines on foreign-to-foreign mergers

On 30 September 2014, the German Bundeskartellamt published a revised guidance paper on "Domestic Effects in Merger Control". The guidance paper aims to provide more legal certainty for concentrations between companies based outside Germany, which often raise the question as to whether German notification thresholds are triggered. The paper provides an analytical framework to assess scenarios in which domestic effects can either be clearly identified or ruled out and identifies essential criteria for the necessary case-by-case assessment of domestic effects in other cases.

Under German law, the obligation to notify is triggered if the relevant turnover thresholds are met. This is the case if the combined aggregate global turnover of all companies involved exceeded EUR 500 million in the past financial year; at least one company achieved turnover in Germany of more than EUR 25 million; and the turnover of another company involved exceeded EUR 5 million. Additionally, the concentration must have a significant effect in Germany.

Domestic effects can clearly be identified if the concentrations involve only two companies and the target company is active in Germany and its turnover exceeds at least the second domestic turnover threshold of EUR 5 million. These concentrations thus need to be notified.

Concentrations involving more than two companies (i.e. in joint venture situations) are exempted from notification if the companies are neither active nor potentially active on a market that includes Germany, or if the parent companies of the joint venture do not compete with each other on the joint venture’s relevant German product market (or on domestic upstream and downstream markets).

The concentration of two or more companies will be subject to merger control if the turnover achieved by the joint venture exceeds EUR 5 million in Germany or anticipates to exceed this threshold within three to five years in the case of a newly established joint venture company or if the joint venture has or expects to have a market share of more than 5 %.

Even if the above thresholds are not met, the joint venture may have to be notified if it involves the transfer of significant resources (e.g. intellectual property rights and know-how). Finally, domestic effects could result from spill-over effects if the parent companies are active on the same market as the joint venture and they have a combined market share of more than 20%.

The guidance paper provides useful guidance for foreign-to-foreign mergers between two companies. However, in the case of joint ventures an often complex case-by-case analysis is still required.

Team

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