Competition Law: INFORMATION, UPDATES AND ANALYSIS, July 2015
Republic of India
Competition Commission of India (‘Commission’)
Mr. Pankaj Agarwal and others v. DLF Gurgaon Home Development Private Limited. [Case No. 13 of 2010]
May 12, 2015
In the instant case, along with the contention of abuse of dominance by the opposite party, the opposite party challenged the jurisdiction of the Competition Commission of India (‘Commission’) in this matter. The Commission is of the opinion that though the agreements between the informants and the opposite party were dated before 20.05.2009 (prior to which relevant provisions of the Competition Act, 2002 were not in force); there are agreements between others and the opposite party which were executed after this date with the same clauses. Though those agreements do not include the informants, the Commission sees no injury to justice in taking them into consideration.
To ascertain any abuse of dominance, it is necessary to establish the relevant market and the dominance of the opposite party in that market. Having determined the market and the economic position of the party with reference to the Centre of Monitoring Indian Economy (‘CMIE’) Database and the Red Hearing Prospectus issued by the opposite party itself, the commission opines that the opposite party is at a dominant position in the market. Further the Commission after due deliberation over the Buyer agreement concurs that the agreement is heavily in favor of the opposite party and against the buyer, and in a normal competitive market scenario, there would be no one-sided and biased clauses against the buyer in an agreement. The disregard to consumer rights that has been displayed in the opposite parties action of cancelling allotments and forfeiting deposits and the deliberate strategy of obfuscating the terms and keeping buyers in the dark about the eventual shape, size, location etc. of the apartment cannot be termed as fair and it is, therefore, quite clear that the conduct of the Opposite Party amounts to abuse of dominant position.
Therefore, in exercise of powers under Section 27 (a) of the Competition Act 2002, the Commission directs the Opposite Party and its group companies operating in the relevant market to cease and desist from indulging in the conduct which is found to be unfair and abusive in terms of the provisions of section 4 of the Competition Act 2002.
M/s Best IT World (India) Private Limited (‘iBall’) v. M/s Telefonaktiebolaget L M Ericsson (‘Publ’) & Other [Case No. 04 of 2015]
May 12, 2015
In the aforementioned case, the Commission observes that the opposite party, i.e. Ericsson, is a member of European Telecommunications Standards Institute (‘ETSI’), a non-profit organization and is officially recognized by the European Union as a European Standards Organization. Referring to the documents filed by the informants, it is clear that prima facie, Ericsson appears to be dominant in the relevant market. Further, the allegations made concerning royalty rates make it clear that the practices adopted by Ericsson appear to be discriminatory as well as contrary to FRAND terms and the conditions of the Non-Disclosure Agreement (‘NDA’) appear to be unfair and discriminatory. The Commission perceives that forcing a party to execute NDA and imposing excessive and unfair royalty rates, prima facie, amount to abuse of dominance in violation of Section 4 of the Competition Act 2002. Conforming with the analysis, the Commission remarks that is prima facie seems to be a case of violation of Section 4 of the Competition Act 2002 and refers the matter to the Director General for complete investigation.
In Re: M/s Sheth & Co & others [Suo Moto Case No. 04 of 2013]
June 10, 2015
The present case relates to suo-moto cognizance taken by the Commission against allegations of suspected cartelization by thirteen manufacturers/ suppliers of CN container i.e., ‘containers with disc required for 81 mm bomb (‘Product’) to the three ordnance factories namely, Ammunition Factory, Khadki, Pune (‘AFK’); Ordnance Factory Dehu Road, Pune (‘OFDR’); and Ordnance Factory, Chanda, Chandrapur, Maharashtra (‘OFCH’). The law is well settled that price parallelism per se is not enough to establish an agreement in contravention of Section 3 of the Competition Act 2002. However, in the present case, price parallelism coupled with peculiar market conditions like few enterprises with same owners, stringently standardized product, predictable demand, etc., unequivocally establishes that the conduct of the Opposite Parties of quoting identical/ similar price bids was only due to collusive tactics adopted by them in violation of Section 3(1) read with Sections 3(3)(a) and Section 3(3)(d) of the Competition Act 2002.
The Commission rejects the justification of the Opposite Parties that the agreement between them has resulted in stabilization of prices. Commission observes that, on the contrary, Opposite Parties have artificially inflated the prices at which the contracts were awarded to them and there is no evidence to show that the agreement amongst the Opposite Parties resulted in improvement in production or distribution of goods or promotion of scientific, technical and economic developments. The Commission further directs the Opposite Parties to cease and desist from the practices that have been found to be anti-competitive i.e., price fixing and collusive bidding and under provisions of Section 27(b) of the Competition Act 2002.
Competition and Market Authority (‘CMA’)
CMA fined Companies and Estate Agents over, infringement of Competition Law.
May 8, 2015
The CMA was investigating into the actions of an association of estate and lettings agents, some of its members and a newspaper publisher; Three Counties Estate Agents Limited (‘Three Counties’); 3 of its members, namely Castles Property Services Limited (‘Castles’), Hamptons Estates Limited (Hamptons International, and its parent companies Countrywide plc and Countrywide Group plc), and Waterfords Limited (‘Waterfords’); and the publisher of the Surrey & Hants Star Courier, Trinity Mirror Southern Limited (Trinity Mirror Southern, and its parent company Trinity Mirror plc) over concerns that there were arrangements with the object of reducing the competitive pressure on estate and lettings agents’ fees in the local area in and around Fleet in Hampshire by preventing estate and lettings agents from advertising their fees or discounts in the local property newspaper. It was predicted that the restrictions may have made it harder for potential competitors to enter the market by using the level of their fees to attract new customers. The CMA alleged that these practices potentially limited consumers’ choice and obstructed their ability to compare prices and assess value for money. All the parties have admitted breaching competition law and have agreed to pay penalties totaling over £775,000 after a discount of 10% granted by the CMA.
United States of America
Federal Trade Commission (‘FTC’)
FTC entered into a landmark settlement with Cephalon Inc.
May 28, 2015
The FTC has entered into a momentous settlement with Cephalon, Inc. and its parent company, Teva Pharmaceutical Industries Limited, to resolve its action against Cephalon for illegally monopolizing the market for the sale of its major sleep-disorder drug Provigil. The primary allegations made by the FTC were that Cephalon paid four generic competitors to abandon their challenges to Cephalon’s Provigil patent and stay off the market for six years in violation of the antitrust laws, resulting in significantly higher prices for the drug and substantial consumer harm where as Cephalon remained the only company in the market which provided that drug. This settlement will ensure that Teva Pharmaceutical Industries, Ltd., which acquired Cephalon in 2012, will make a total of $1.2 billion available to compensate purchasers, including drug wholesalers, pharmacies, and insurers, who overpaid because of Cephalon’s illegal conduct. Further, this judgment has also managed to establish that reverse payment patent settlements are subject to the same antitrust rules that govern U.S. business conduct generally.
European Competition Commission (‘European Commission’) fines parking heaters producers Eberspächer and Webasto in cartel settlement
June 17, 2015
The European Commission found that two German producers of automotive parts, Eberspächer and Webasto, have breached EU antitrust rules prohibiting cartels and restrictive business practices and were fined €68 million for settlement. They coordinated prices and allocated customers with regards to fuel-operated parking heaters and auxiliary heaters.
Article 101 of the Treaty on the Functioning of the European Union (‘TFEU’) prohibits anticompetitive agreements and decisions of associations of undertakings. Investigations clearly revealed that the two companies coordinated prices and allocated customers in the entire European Economic Area (‘EEA’).
European Competition Commission holds multiple producers and distributors responsible for operating retail food packaging cartels.
June 24, 2015
The European Commission has fined eight manufacturers and two distributors of retail food packaging trays a total of €115 865 000 for having participated in at least one of five separate cartels. The eight manufacturers are Huhtamäki of Finland, Nespak and Vitembal of France, Silver Plastics of Germany, Coopbox, Magic Pack and Sirap-Gema of Italy and Linpac of the UK. The two distributors are Ovarpack of Portugal and Propack of the UK. The companies fixed prices and allocated customers of polystyrene foam or polypropylene rigid trays, in breach of EU Antitrust Rules. The investigations revealed not one cartel, but five cartels functioning with each of the above mentioned companies participating in at least one.
Republic of India (comprising pronouncements on anti-competitive agreements, abuse of dominant position)
Indian Sugar Mills Association and Ors. v Indian Jute Mills Association and Ors. (MANU/CO/0092/2014)
The present information under section 19(1)(a) of the Competition Act, 2002 was filed by Indian Sugar Mills Association, National Federation of Co-operative Sugar Factories Ltd. and All India Flat Tape Manufacturers Association (collectively ‘Informants’) against Indian Jute Mills Association (IJMA) and Gunny Trade Association (GTA) (‘Opposite Parties’) respectively alleging an anti-competitive agreement between the members of IJMA and GTA with respect to fixing of sale price of jute packaging material by issuing of Daily Price Bulletin (DPB) by GTA for jute bags for the members of IJMA and the GTA to follow.
The Commission found itself in agreement with the findings of the Directorate General (DG) regarding the existence of a tacit agreement by way of action in concert by the members of GTA under the aegis of GTA to determine and control the price by publication of GTA, DPB and as the transacted prices were followed by the members of the GTA and IJMA the Commission held the impugned acts/conduct of IJMA and GTA to be in contravention of the provisions of section 3(3)(a)/ 3(3)(b) read with section 3(1) of the Act. The Commission issued a cease and desist order against the associations and imposed a penalty on IJMA and GTA @ 5% of the average turnover of the last three years. The Commission also imposed penalties on the persons who were members of the Executive Committee of IJMA and the Executive Committee and the DPB Sub-Committee of GTA @ 5% of the average income of the last three financial years.
The Commission also noted that the provisions of the Jute Packaging Materials (Compulsory Use in Packaging Commodities) Act, 1987 placing statutory requirement on the sugar mills to undertake sugar packaging using jute bags only, was against the principle of competitive neutrality as the entities manufacturing matching products were denied market access. Such a policy further not only restricted the choice of customers like sugar mills but it also led to escalating the cost which is ultimately borne by the end-consumers. Accordingly, the Commission expects the Government of India to re-assess the current market situation for removing the market distortions arising out of such policy.
In re: Collective boycott/refusal to deal by the Chemists & Druggists Association, Goa (CDAG), M/s Glenmark Company and M/s Wockhardt Ltd. (MANU/CO/0086/2014)
M/s Varca Druggist & Chemists and others had filed an information with the then Director General (Investigations & Registrations), Monopolies and Restrictive Trade Practices Commission against Chemists & Druggists Association, Goa, (‘CDAG’ / the ‘Opposite Party No. 1)’) for its alleged anti-competitive practices. After repeal of the Monopolies and Restrictive Trade Practices Act, 1969, the said case was transferred to Competition Commission of India. The Commission passed an order under Section 27 of the Competition Act on 11.06.2012. Subsequently, the Commission was informed by Mr. Mario Vaz (the ‘Informant’) that CDAG had not complied with the above said order of the Commission and was restraining pharmaceutical companies such as M/s Glenmark Pharmaceuticals Limited (‘Opposite Party No. 2’) and M/s Wockhardt Limited (‘Opposite Party No. 3’) from doing business with his company. It was alleged that under the guidance of CDAG, all stockists of the Opposite Party No. 3 appeared to have formed a cartel and stopped receiving goods from the Opposite Party No. 3 so as to compel it to stop dealing with the Informant. It was also alleged that under the influence of CDAG, the Opposite Party No. 2 and the Opposite Party No. 3 stopped supplies to the Informant.
Commission observed that CDAG clearly disregarded the Commission’s order dated 11.06.2012 and indulged in anti-competitive conduct. By forcing pharma companies to discontinue supply through non-authorized stockist like the Informant, it continued to carry on its anti-competitive practices. Further, it forced pharmaceutical companies like M/s Glenmark Pharmaceuticals Limited and M/s Wockhardt Limited to follow its mandate by threatening the other stockists in Goa to stop taking supplies or suspend receiving supplies from them till such time they stopped supplies to the informant. The Commission directed CDAG to seize and desist from indulging in the anti-competitive practices and imposed a penalty of INR 10,62,062/-, calculated at the rate of 10% of the average receipts of CDAG for three financial years.
Shri Bijay Poddar v M/s Coal India Limited and its subsidiaries, (MANU/CO/0087/2014)
Shri Bijay Poddar (‘Informant’) alleged that the terms and condition of Spot e-Auction Scheme 2007 (‘the Scheme’) introduced by M/s Coal India Limited and its subsidiaries (‘Opposite Parties’) were in contravention of the provisions of the Competition Act. Informant further alleged that the forfeiture clause under the Scheme is arbitrary and illegal and in abuse of monopolistic power enjoyed by the Opposite Parties.
The Commission observed that the stipulations provided in clause 9.2 of the Scheme is in contravention of the provisions of Section 4(2)(a)(i) of the Competition Act whereby a buyer is saddled with penalty by way of forfeiture of EMD for non-lifting of coal after successful participation in the e-Auction without any corresponding liability upon Opposite Parties for failure to deliver coal in respect of accepted bids. Such arrangement in the Scheme was noted to be a result of market power exercised by the Opposite Parties. Accordingly, the Commission held the Opposite Parties to be in contravention of the provisions of Section 4(2)(a)(i) of the Competition Act for imposing unfair conditions upon the bidders under the Scheme. Apart from issuing a cease and desist order, the Commission ordered modification of the terms and conditions of the Scheme suitably.
M/s Sai Wardha Power Company Ltd. v M/s Western Coalfields Ltd. [MANU/CO/0085/2014]
The information under Section 19(1)(a) of the Competition Act, 2002 (‘Competition Act’) was filed by M/s. Sai Wardha Power Company Ltd. (‘the Informant’) against M/s. Western Coalfields Ltd. and M/s. Coal India Ltd. (collectively, ‘the Opposite Parties’) alleging contravention of the provisions of Section 4 of the Competition Act. In order to procure the supply of coal for its power plant, the Informant after having obtained linkage and letter of assurance on cost plus basis from the Opposite Parties, had entered into three Fuel Supply Agreements (‘FSAs’) for supply of coal from three different identified cost plus coal mines under the control of the Opposite Parties. The Informant stated that the Opposite Parties enjoy virtual monopoly over production and supply of coal in India. The Informant alleged that the Opposite Parties, by abusing its dominant position, had forced the Informant to enter into one sided, anti-competitive FSAs under which the Informant had no bargaining power or power to negotiate whatsoever and in the absence of any alternative option for procurement of coal, the Informant was compelled to
accept the dictated terms and conditions stipulated in the FSAs.
The Commission established that the Opposite Parties operate independently of market forces and enjoy undisputed dominance in the relevant market of “production and supply of non- coking coal to the thermal power producers in India”. The Commission further held the Opposite Parties to be in contravention of the provisions of section 4(2)(a)(i) of the Competition Act for imposing unfair conditions in FSAs with the power producers for supply of non-coking coal. Commission directed the Opposite Parties to cease and desist from indulging in the conduct found to be in contravention of the provisions of the Competition Act and to make necessary modifications in FSAs in light of the observations and findings recorded by it.
M/s HT Media Limited Informant v M/s Super Cassettes Industries Limited, (MANU/CO/0080/2014]
M/s. HT Media Limited (‘the informant’) filed information under Section 19(1) (a) of the Competition Act, 2002 (‘Competition Act’) against M/s. Super Cassettes Industries Limited (‘the Opposite Party’) alleging inter alia contravention of Sections 3 and 4 of the Competition Act.
The Informant, a leading media companies had launched an FM radio channel called Fever 104. Opposite Party is engaged in manufacture, production and publication of music and videos. The Informant alleged that the Opposite Party has abused its dominant position by (i) charging excessive amount as license fees/royalty from the Informant for grant of rights for the broadcast of the Opposite Party’s music content on Fever 104 radio station; (ii) imposing minimum commitment charges (‘MCC’) to be paid to the Opposite Party per month irrespective of actual needle hour of broadcast of the Opposite Party’s music content by the Informant and (iii) making conclusion of licensing arrangements with the Opposite Party subject to the acceptance of license fees and MCC imposed by them. The Informant alleged that such imposition of exorbitant license fees and MCC by the Opposite Party is an unfair condition imposed by it for granting license to broadcast its music content on radio under the Competition Act which limits and restricts the right of the Informant to broadcast its music content of other music companies/composers thereby limiting the choice of music for the end consumers to only the opposite party’s music content and results in denial of market access for other music companies (publishers, copyright societies etc.) with less market share and bargaining power.
Commission held opposite party to be in contravention of Section 4(2)(a)(i) of the Competition Act. The Commission directed opposite party to cease and desist from formulating and imposing the unfair condition of MCC in its agreements and to suitably modify such unfair conditions within 3 months of the date of receipt of the Order. The Commission also imposed penalty at the rate of 8% of average turnover of the last three years of the Opposite Party amounting to INR 2,83,28,000.
United States of America
Federal Trade Commission (‘FTC’)
The FTC puts conditions on the proposed merger of ZF Friedrichshafen AG and TRW Automotive Holdings Corp.
May 15, 2015
The Commission has issued a proposed complaint and consent order to deal with the competitive concerns which will arise from the ZF Friedrichshafen AG’s proposed $12.4 billion acquisition of TRW Automotive Holdings Corp. FTC believes that this proposed acquisition is likely to substantially reduce competition in the manufacture and sale of heavy vehicle tie rods in North America. The parties involved have agreed to divest TRW’s linkage and suspension business in North America and Europe, to settle Federal Trade Commission charges that their proposed $12.4 billion merger would likely harm competition in the North American market for heavy vehicle tie rods. The merged company will have six months after the proposed consent agreement takes effect to divest the TRW assets to an FTC-approved buyer.
Medical Device Company Zimmer Holdings, Inc. set to Divest Assets as a Condition to Acquire Biomet, Inc.
June 24, 2015
Medical device company, Zimmer Holdings, Inc. has agreed to divest rights and assets related to unicondylar knee implants, total elbow implants, and bone cement in order to settle FTC charges that its proposed $13.35 billion acquisition of Biomet Inc. is anticompetitive. The proposed order requires Zimmer’s U.S ZUK and Biomet’s U.S Discovery to divest to Smith & Nephew and DJO, respectively the U.S. intellectual property, manufacturing technology, and existing inventory relating to its unicondylar knee implant (Zimmer), and total elbow implant and bone cement products (Biomet) and to provide transitional services to help them establish themselves. By eliminating competition between the companies, and reducing the number of competitors for the sale of each relevant orthopedic product, the merger as proposed would increase the likelihood that Zimmer would unilaterally exercise market power in these markets, resulting in lower levels of quality and service and higher prices.
Republic of India
Combination No. C-2015/01/241
May 5, 2015
The Competition Commission of India received a notice under Section 6(2) of the Competition Act, 2002 given by General Electric Company, GE Industrial France SAS; Alstom and Alstom Holdings (hereinafter GE, GEIF, Alstom and Alstom Holdings are collectively referred to as ‘Parties’). The proposed combination relates to the (i) acquisition of Alstom’s thermal power, renewable power and grid businesses by GE and its group companies, (ii) the formation of joint ventures (JVs) i.e. the Grid and Digital Energy JV, the Renewables JV and the Global Nuclear and French Steam JV, between GE and Alstom in which Alstom will hold a minority shareholding, and (iii) acquisition of the signalling business of GE by Alstom. It is observed from the data given by the Parties that the market share of GE in the Mainline segment, on the basis of revenue in the financial year 2013-14, was 0-5 per cent, whereas the market share of Alstom in the Urban segment, on the basis of sales value during the period 2009 – 13 was 15-20 per cent. It is further observed that there are other major players present in the signalling sector in India such as Bombardier Transportation, Ansaldo STS, Siemens (Invensys), Thales, Kyosan Signal, etc. Considering the facts on record and the details provided in the notice given under Section 6 (2) of the Competition Act 2002 and the assessment of the combination after considering the relevant factors mentioned in Section 20(4) of the Competition Act 2002, the Commission is of the opinion that the proposed combination is not likely to have any appreciable adverse effect on competition in India and therefore, the Commission hereby approves the proposed combination under Section 31(1) of the Competition Act 2002.
Combination Registration No. C-2015/05/272
June 5, 2015
The Competition Commission of India received a notice under of Section 6(2) of the Competition Act, 2002 given by Hyundai Hysco Company Limited and Hyundai Steel Company, (together referred to as ‘Parties’) pursuant to a merger agreement entered into between them on 8th April 2015. The Proposed combination relates to the merger of Hyundai Hysco into Hyundai Steel as a result of which Hyundai Hysco would cease to exist and Hyundai Steel will be the surviving company. It has been stated by the parties that both Hyundai Hysco and Hyundai Steel belong to the Hyundai Motor Group, South Korea and fall under Section 5(c) of the Competition Act.
In the light of information provided by the Parties and other documents on record, it is observed that there is no horizontal overlap between the activities of Hyundai Steel and Hyundai Hysco in India. Further, given the insignificant market shares of the parties in India, the fact that Hyundai Steel only supplies to HSIPL and the presence of other major suppliers, (both foreign or domestic), it is observed that vertical relationship between the Parties would not result in foreclosure in the upstream or downstream market(s) in which the parties are present in India. Considering the facts on record and the details provided in the notice given under Section 6(2) of the Competition Act 2002 and assessment of the proposed combination on the basis of factors stated in Section 20(4) of the Act, the Commission is of the opinion that the proposed combination is not likely to have an appreciable adverse effect on competition in India and therefore, the Commission hereby approves the same under Section 31(1) of the Competition Act 2002.
United Kingdom (UK)
Competition and Market Authority (‘CMA’)
CMA: Interchange fee arrangements for UK domestic point-of-sale transactions; not priority
May 6, 2015
The Competitions & Markets Authority decided that formal investigations of MasterCard’s and Visa’s MIF arrangements no longer merited the continued allocation of resources because they were not included within the CMA’s casework priorities anymore due to the Regulation of the European Parliament and of the Council on interchange fees for card-based payment transactions (the ‘Interchange Fee Regulation’ or ‘IFR’) which will came into force after 20 days from the approved date, i.e. April 20, 2015. Under the IFR, MIFs will be capped at 0.3% and 0.2% of the value of the transaction for credit card transactions and debit card transactions respectively (with limited discretion for national governments to implement certain variations to the above caps).
Ticketmaster Europe Holdco / Seatwave [ME/6505-14]
May 1, 2015
Ticketmaster Europe Holdco Limited (‘Ticketmaster’) acquired Seatwave Limited, Seatwave Deutschland GmbH, Seatwave Nederland B.V. and Timbre Digital Limited (together ‘Seatwave’) (‘Merger’). There was alleged contention of reduction in competition in the market due to the Merger. The CMA assessed whether network effects in this market would create a tipping point where the market would move towards higher concentrations as a result of the Parties’ market position caused by the Merger. However, respondents to the CMA’s market testing raised no concerns about the Parties’ share of supply after the Merger, and one competitor said that the Merger would actually make the market more competitive. The CMA believes that the constraints, taken together, are sufficient to ensure that the Merger does not give rise to a realistic prospect of a substantial lessening of competition (‘SLC’) in relation to online exchange platforms for selling and buying secondary tickets for all types of live entertainment events in the UK and the CMA considers that GetMeIn! and Seatwave, close competitors but not each other’s closest competitors. Rather, both the Parties have been facing, and will continue to face, strong competition from Viagogo and StubHub. The Parties also face a more limited competitive constraint from many smaller online secondary ticket exchanges. Moreover the CMA notes that the market for online secondary ticket platforms in the UK is relatively new and dynamic, with rapidly changing market shares. Hence the CMA decided that the merger will not be referred under Section 22(1) of the Enterprise Act, 2002 as it would have to if the merger could create a substantial lessening of the competition in the market.
ForFarmers UK / Countrywide Farmers [ME/6507/14]
May 13, 2015
The CMA investigated the anticipated acquisition by ForFarmers UK Limited of the Feed and Forage business of Countrywide Farmers plc. The Parties overlap in the supply and distribution of animal feeds and other agricultural products in the UK. The CMA has assessed whether the Merger will result in a realistic prospect of a substantial lessening of competition (SLC) as a result of horizontal unilateral effects against the separate candidate frames. As to the geographic scope, the CMA has assessed the Merger on a UK-wide basis for single feeds, and on a regional basis for compound and blended feeds. In most of reference, the CMA has found that the Parties’ estimated market shares are relatively low, the increments arising from the Merger are not material, several other competitors will remain in the market and third parties did not raise any material concerns. The CMA considers that these statistics are sufficient to ensure that the Merger does not give rise to a realistic prospect of an SLC as a result of horizontal unilateral effects and hence CMA has cleared the acquisition of Countrywide Farmers by ForFarmers.
Allflex / Cox Agri [ME/6522/15]
Solera Holdings / CAP Automotive [ME/6504-14]
June 12, 2015
On 20 November 2014, Solera Holdings, Inc. (Solera), via its wholly owned subsidiary HPI Holding Limited (HPI), acquired CAP Automotive Limited (CAP) (‘the Merger’). As per CMA, apart from a horizontal relationship, there is also a non-horizontal relationship between the Parties with regard to vehicle provenance data (provenance data) on the one hand and valuation data and codes on the other. Solera supplies provenance data and resells codes and used car valuation data from CAP (CAP data) and two other used car valuation data suppliers (Eurotax Glass’s (Glass’s) and DeltaPoint). Another reseller of CAP data (Experian) is also a supplier of provenance data, competing with Solera, and most customers of provenance data are also customers of used car valuation data. Detailed investigation led to certain constraints of the parties like foreclosing Experian which the CMA considers that, taken together, are sufficient to ensure that the Merger does not give rise to a realistic prospect of a substantial lessening of competition (‘SLC’) as a result of horizontal unilateral or non-horizontal effects; because the contravention of the constraints by the parties would not be beneficial to them and hence the party does not have any incentive to do it and hence the merger will therefore not be referred under Section 22(1) of the Enterprise Act, 2002.
European Union (‘EU’)
European Commission accepts commitments by SkyTeam members on three transatlantic routes
May 12, 2015
The European Commission has approved the alliance between the SkyTeam members, namely Air France/KLM, Alitalia and Delta on the Amsterdam-New York and Rome-New York route for all passengers and Paris-New York route for premium passengers. The Commission had concerns that the cooperation between these airlines may harm competition for all passengers on the Amsterdam-New York and Rome-New York routes and for premium passengers on the Paris-New York route, in breach of EU antitrust rules but the companies provided the Commission with a set of commitments which intend to enable competing airlines to start operating or extend existing operations on the routes in question, by lowering barriers to entry or expansion. Article 9 of the EU’s Antitrust Regulation (Regulation 1/2003) allows the Commission to conclude antitrust proceedings by making commitments offered by a company legally binding. If Air France/KLM, Alitalia or Delta were to breach the commitments, the Commission could impose a fine of up to 10% of the companies’ total annual turnover, without having to find a violation of the EU competition rules
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Doc ID: CL/07/15