The European Antitrust Review 2015

European Commission

Alexander Italianer

Director general of the Directorate General for Competition

European Union: Directorate General for Competition

Early in 2014, the Directorate General for Competition (DGComp) received GCR’s ‘Agency of the Year – Europe’ award, which we gratefully accepted as an acknowledgement of another successful year in competition enforcement. Besides robustly enforcing competition, we progressed on a number of key policy initiatives, many of which came into fruition in 2014 or will be completed in the near future.

The democratisation of antitrust

One of these initiatives is our proposal for a Directive on Antitrust Damages Actions, adopted by the Commission in June 2013 and currently politically agreed to by both the Council and the European Parliament. This will make it easier for victims of antitrust violations in the European Union to file claims for damages.

Cartels and abuses of dominant positions cause serious harm to consumers and businesses. Under EU law, any person or company who suffered harm because of an infringement of EU competition law has a right to full compensation. However, few claims are brought before national courts. This is particularly difficult for small businesses and consumers. Between 2007 and 2013, only 25 per cent of infringements found by the Commission led to civil actions, mostly by large businesses.

By removing obstacles faced by consumers and companies, the antitrust damages directive makes it easier for them to exercise their rights. The Directive on Antitrust Damages Actions democratises antitrust and, as a complement to enforcement by the Commission and national competition authorities, also contributes to competition enforcement overall.

The Directive ensures that:

  • victims can obtain full compensation, both for actual losses and for lost profits;
  • victims have enough time to bring an action – the Directive establishes clear rules on limitation periods and gives victims every opportunity to bring an action;
  • victims can rely on public enforcement decisions to bring an action – as is already the case for Commission decisions, the Directive ensures that infringement decisions by national competition authorities will also constitute evidence of an infringement, which means claimants no longer face the near-impossible task of proving an infringement themselves;
  • victims will have better access to evidence as they will be able to obtain court orders for the disclosure of important documents – judges will ensure these requests are proportionate and that confidential information is duly protected.

The Directive contains several safeguards to ensure leniency applicants are not disadvantaged by a civil claim before a court.

Cartels

In 2013, DGComp continued to crack down severely on hard-core cartels, with fines against cartels in sectors crucial to economic recovery such as the automotive sector and finance.

The Commission issued four cartel decisions in 2013, all in relatively new areas of cartel enforcement such as the automobile industry, financial services and food. This illustrates a long-term shift in emphasis from traditional fields of investigation such as manufacturing and heavy industry.

In July 2013, the Commission fined car parts suppliers for operating five cartels in the supply of wire harnesses (also known as the ‘nervous system’ of the car, as they are used to start the engine, switch on the air-conditioner and open the windows).

It would probably not be possible to drive a car from which all the cartelised parts have been removed – at least, not very safely. Early in 2014, the Commission issued a fine against a bearings cartel. Investigations into other car parts such as occupant safety systems, lighting and thermal systems are ongoing and could, if infringements are established, lead to further decisions in the coming years. These actions are aimed at putting an end to an extensive network of anti-competitive practices in the car parts sector.

The sheer number of cartelised parts and the significance of the automobile sector to the economy as a whole illustrate the importance of these efforts.

In the Wire Harness case, the Commission followed the settlement procedure. Settlements give parties a 10 per cent reduction in the fine if they accept liability for the infringement and do not contest the Commission’s findings. Settlements also let parties turn the page quicker and save valuable time by allowing them to focus on the development of their business. The settlement process also lets the Commission free up resources, making it possible to fight new cartels, which contributes to increased deterrence.

In 2013, three out of four cartel decisions were taken in a settlement procedure, confirming a long-term trend in the increased popularity of settlements.

The settlement procedure was also used in December 2013 to issue record fines against a number of major banks for participating in cartels involved in manipulating interest rate derivatives, namely Euro Interest Rate Derivates and Yen Interest Rate Derivatives. The Commission is pursuing the case against the non-settling parties.

Although settlements can lead to quicker decisions, the Commission will not pursue them at any cost. In November 2013, the Commission issued a fine against North Sea shrimp traders under the normal cartel procedure. And in the spring of 2013, the Commission abandoned a settlement procedure in an investigation into smart-card chips. Due to lack of progress in this case, the Commission reverted back to the normal cartel procedure by sending a statement of objections to the companies concerned. If discussions drag on too long, this defeats the object of having a quicker settlements procedure, which is especially intended as an efficiency tool in our arsenal of measures against cartels.

Addressing antitrust issues through commitment decisions, prohibition decisions and regulation

In other antitrust cases, commitment decisions continued to play an important role in 2013, with four such decisions being adopted last year by the Commission. This type of decision makes the remedies that companies voluntarily offer to address the Commission’s competition concerns legally binding. Thanks to procedural efficiencies, they make it possible to swiftly and quickly restore competition to the market. This is particularly true if the company under investigation is ready to propose appropriate commitments at an early stage, which makes it possible to avoid lengthy adversarial proceedings. Rather than focusing on punishing past behaviour, commitment decisions are swift and forward-looking, which makes them particularly useful in fast-moving markets. For example, in July 2013 the Commission adopted the last of a series of commitment decisions regarding the sale of e-books, having adopted similar decisions regarding other publishers in December 2012. The e-books case ensures that e-book sellers can operate in a more competitive way.

2013 also proved that the Commission’s commitment decisions are to be taken seriously: Microsoft was fined €561 million for failing to honour its commitment to offer customers a choice screen for internet browsers.

But commitment decisions are not appropriate in all cases. When the Commission investigates behaviour that has been going on for several years (or has already ceased) and punishment and deterrence are in order, it will take a prohibition decision and issue a fine. Two examples from 2013 are the Lundbeck decision and the Johnson&Johnson/Novartis decision: in both cases, pharmaceutical companies had kept generic medicines off the market to the detriment of both patients and public budgets.

Another long-term trend continuing in 2013 is the complementing of investigation with regulation. A case in point is the scrutiny of multilateral interchange fees (MIFS) for credit card payments. In 2013, the Commission proposed a draft regulation introducing a cap on MIFS, which is still in front of the legislator. At the same time, it considered commitments offered by Visa to cap MIFS, which were ultimately accepted in February 2014.

Mergers

The number of merger decisions remains stable. The Commission received close to 300 merger notifications in 2013 and cleared the overwhelming number of transactions without any intervention. Competition problems that are found are usually resolved through remedies: these made up around 5 per cent of cases.

Eleven merger cases were closed relatively quickly in Phase I; two more than in 2013. Two cases requiring closer scrutiny were closed in Phase II, compared with six cases in 2012.

The Commission prohibited just two mergers in 2013; one more than in 2012. Even so, this is still in line with long-term developments – in the last four years, the Commission has opposed only five mergers.

Early in 2013, the Commission blocked the proposed merger between package delivery services UPS and TNT – the takeover would have restricted competition in 15 member states. The Commission also opposed the takeover of Irish flag carrier Aer Lingus by low cost airline Ryanair. This merger would have harmed consumers by creating a monopoly or dominant position on 46 routes on which Aer Lingus and Ryanair were competing vigorously at the time. In both cases, the Commission found that proposed remedies did not adequately address competition concerns.

Besides investigating proposed mergers, DGComp is simplifying and reviewing its merger rules. Following a public consultation, the Commission adopted the merger simplification initiative in December.

The new rules extend the simplified merger review procedure so that more mergers can now be cleared more quickly. The information merging parties are required to give is now more streamlined and targeted. These new rules are better for businesses, because they are simpler and cheaper to implement. They will be better for the taxpayer, too, as they allow the Commission to focus resources on problematic cases that merit intensive review.

But the proof of the pudding is in the eating. The decision came into force on 1 January 2014, and the results can already be seen. The Commission now reviews many more transactions with fewer burdens on companies and its own resources, and parties are already benefitting from the more streamlined information requirements.

The Commission is also improving its merger rules in other ways. The first issue up for discussion is the possible inclusion of the acquisition of minority shareholdings in the Merger Regulation. These, too, can cause significant harm to competition and to consumers, particularly if they are acquired by a competitor. In the EU, Austria, Germany and the United Kingdom, minority shareholdings are already subject to merger review.

A second area of improvement is the referral of cases between the Commission and member states. A significant number of cross-border cases are still subject to merger review in several member states, which increases the risk of ‘forum shopping’: the selection by a company of a relatively benevolent jurisdiction. Possible solutions are the streamlining of pre-notification and post-notification referrals.

The Commission has received a large number of replies from interested parties in response to a staff working paper published in June 2013; it aims to publish a white paper in 2014.

State aid

DGComp is not just making merger rules more efficient, but also its state aid rules. This has been a major priority for DGComp; during 2013, the Commission made extensive progress in completing the State Aid Modernisation programme launched in 2012.

A very important aspect of the reform is to cut red tape by reducing the necessity for individual state aid notifications. The new block exemption rules will cover around 75 per cent of today’s state aid measures and 66 per cent of aid amounts. If member states adapt their aid policies to the new rules, as much as 90 per cent of measures could be exempted in the future.

However, this should not be confused with slackening control. Simplification is balanced by tougher ex post controls and member states will have to make exempted aid measures public. By allowing less harmful aid to go ahead without individual clearance, the Commission will be able to focus its intervention on where it matters most for the internal market.

The Commission is also currently modernising the rules applicable to specific types of state aid. The relevant guidelines support broader EU goals – notably, the Europe 2020 agenda for smart, sustainable and inclusive growth.

For example, the new guidelines on risk finance will help member states support access to finance for SMEs, from company creation to becoming international players, with aid amounts calibrated to their stage of development. Similarly, with the new Research and Development and Innovation Framework, EU governments will be able to invest more and more in R&D and innovation.

Now that most of the new rules have been put in place, the Commission’s attention is shifting towards their smooth implementation. In the new environment, deeper cooperation with member states will be necessary.

Conclusion

In many respects, 2013 was a transitional year. Progress was made in important cases and policy initiatives with a view to their conclusion in 2014. One example is in Google, which offered commitments in our investigation into its specialised search engine. Another example is the Commission’s investigation into the abuse of a dominant position in standard essential patents by Samsung and Motorola, which was concluded in April 2014. Key policy initiatives also booked progress in 2013, such as the directive into private damages action, merger review and simplification, and the simplification of state aid.

Many of the Commission’s efforts in the field of competition in 2013 have been or will be completed in 2014, leaving European competition enforcement simpler, more democratic and more efficient, and providing the new Commission with a solid foundation on which to build its own approach.

Director general of the Directorate General for Competition

Next Chapter: Cartels and Leniency

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