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C&RR, Issue 2015/4 Competition & Regulation Report July –October

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C&RR, Issue 2015/4 Competition & Regulation Report July –October C&RR, Issue 2015/4 Competition & Regulation Report J u l y – O c t o b e r 2 0 1 5 EDITORIAL: Tax Rulings and application of State Aid Rules. What does really remain of the compatibility presumption? HIGHLIGHTS CJEU issued ruling on Post Danmark’s retroactive rebate scheme CJEU ordered Italy to pay fine for delay in recovering aid incompatible with common market The European Commission approved acquisition of Aer Lingus by IAG, subject to conditions The European Commission approved the acquisition of Hospira by Pfizer, subject to conditions The European Commission approved Nokia´s acquisition of Alcatel-Lucent The European Commission ordered France to recover €1.37 billion in incompatible aid from EDF The European Commission opened in-depth investigation into proposed acquisition of TNT by FedEx The European Commission signed best practices cooperation framework with China The European Commission opened in-depth investigation into Staples' proposed takeover of Office Depot HCC accepted commitments proposed by tobacco manufacturers to meet competition concerns in the market for the sale of tobacco products in Greece TOPICS IN THIS ISSUE Antitrust Mergers State Aid Energy Electronic Communications Pharmaceuticals Transport News of the Markets © KLC Law Firm. The content of this Issue is designated only for general information purposes and should not be construed as legal advice in general or in any specific case neither as business or investment advice. Clients wishing to have legal advice on behalf of our Firm on a specific factual context should contact appropriately the Lawyers of the Firm. July - October 2015 Page 1 C&RR, Issue 2015/4 Editorial: of Fiat Finance were unjustified. In fact, Fiat finance provided several financial Tax Rulings and application of State services in favor of other companies of Aid Rules. What does really remain of the Fiat group that are comparable to the compatibility presumption? those of a bank. Finding that the price of these services charged by Fiat It seems that the Commission swifts its Finance, which were endorsed by the attitude towards tax rulings of member fiscal authorities for tax imposition states. Tax rulings are arrangements purposes, was not compatible with the between fiscal authorities of member arm’s length principle, the Commission states with individual undertakings, and, concluded that the respective tax rulings especially, with multinational of the Luxembourgish authorities companies, concerning the modalities granted the company an undue of calculation of the tax due. Generally, advantage and, thus, constituted an the idea that tax rulings are not per se unlawful State aid. Similarly, in the distorting competition prevailed. Starbucks case, the Commission However, the Court of Justice in concluded that the special intragroup Belgium and Forum v. Commission arrangements concerning the provision (Joined Cases C-182/03 and C-217/03) of green coffee beans and the provision clearly indicated that arrangements of exaggerated royalties for the use of providing for special or discriminatory trademarks were not in line with the modalities between tax authorities and arm’s length principle as accepted by specific undertakings that do not the Dutch tax authorities and, thus, the comply with the arm’s length principle respective tax rulings again constituted can be constitutive of a State Aid unlawful State aid measures. In both measure. Since then, the Commission cases the Commission ordered became more sensitive in examining recovery, which means that the such tax arrangements in various beneficiaries must now pay an extra member States. In 2014 the amount of tax, which corresponds to Commission begun to scrutinize tax the difference between the tax rulings in Ireland (Apple), Luxembourg effectively paid and the amount of the (Amazon, Fiat Finance) the tax that would have been owed if the Netherlands (Starbucks) and the market operator principle had been Belgian ruling tax scheme, and in June respected. 2014 and February 2015 it decided to open in-depth investigations (see the These decisions, even if they do not relevant press releases of the European modify the compatibility presumption Commission, IP 14/663 and of tax rulings, they indeed mark a clear IP/15/4080). On 21 October 2015, the change of the Commission’s attitude as Commission issued its decisions regards individual tax arrangements of concerning tax rulings in favor of Fiat member states. The Commission Finance (Luxembourg) and Starbucks already announced that it will pursue (Netherlands) (see the relevant press similar on-going investigations related to release of the European Commission, tax rulings applied by all member states. IP 15/5880). In the case of Fiat More information can be found in the Finance, the Commission concluded State Aid Registry under cases No. that the arrangements of the 38373, 38374, 38375 and 38944. Luxembourgish tax authorities in favor July - October 2015 Page 2 C&RR, Issue 2015/4 Antitrust undertaking because of the cartel, the sales of its finished products in the EEA CJEU issued ruling on Post Danmark’s to independent third-party retroactive rebate scheme undertakings. To read the full press release of the CJEU click here. To On 06.10.2015, the Court of Justice of read the full judgment of the CJEU in the European Union (CJEU) ruled on case C-231/14 P click here. preliminary questions referred by a Danish Court regarding the assessment of certain rebates under EU antitrust The CJEU confirmed cartel facilitator's rules, in Case C-23/14 (Post Denmark liability A/S v Konkurrencerådet). The Court clarified in particular that in order to On 22.10.2015, the CJEU in its determine whether a retroactive judgment in case C-194/14 P ruled on standardized rebate scheme results in the so called "facilitation" of cartels – shutting out competitors in breach of such as the organization of a cartel by a Article 102 TFEU, it is necessary to consultancy firm. First, the Court examine all the circumstances of the confirmed that the service agreement case. The Court held further that the between AC Treuhand and suppliers of application of a price-cost test (known heat stabilizers constituted an illegal as "as efficient competitor test") is one of agreement under EU competition rules. the tools available for determining that a Agreements that distort competition in rebate scheme is abusive but is not a the EU are caught by Article 101 of the necessary condition for doing so. The Treaty on the Functioning of the Court also clarified that, in order to be European Union (TFEU), irrespective caught by Article 102 TFEU, the anti- of whether the parties operate in the competitive effects of a rebate scheme same market. Moreover, the Court held must be probable but there is no need that the effectiveness of Article 101 to show that they are serious or TFEU, that prohibits anticompetitive appreciable. To read the full judgment business practices, would be of the CJEU in Case C-23/14 click endangered if facilitators, such as AC here. Treuhand, could escape liability. Second, the Court confirmed that the The CJEU confirmed the €288 million European Commission was entitled to fine imposed on InnoLux for its fix the fine as a lump sum instead of participation in the cartel on the market using value of sales as a basis for setting for LCD panels the fine. AC Treuhand, as a consultancy firm, was not active on the On 09.07.2015 in case C-231/14 P, the markets for tin stabilizers and CJEU dismissed an appeal by InnoLux ESBO/esters, and therefore did not against the fines imposed on it and held have any sales in those markets. In that when the goods concerned by the February 2014, the General Court (case cartel have been incorporated into T-27/10) upheld the Commission's finished products by a vertically- 2009 decision in the heat stabilizers integrated undertaking outside the cartels with regard to AC Treuhand. EEA, the Commission may take into AC Treuhand appealed the judgment account, for the purposes of calculating to the Court of Justice, seeking to annul the fine to be imposed on that the decision or in the alternative to July - October 2015 Page 3 C&RR, Issue 2015/4 annul or reduce the fine. To read the granted to its subsidiary. To read the full judgment of the CJEU in case C- full press release of the CJEU click 194/14 P click here. here. To read the full judgment of the CJEU in Case C-597/13 P click here The CJEU reduced the fine imposed and in Case C-634/13 P click here. on Total jointly and severally with Total France from €128 million to €125 The GC reduced the fines imposed by million the Commission on Panasonic and on Toshiba for their participation in a On 17.11.2015, the CJEU issued cartel on the European market for judgments in cases C-597/13P (Total tubes for television sets SA v Commission) and C-634/13P (Total Marketing Services SA v On 09.09.2015 the General Court of Commission). By its decision of 2008, the European Union (GC) by its the European Commission found that judgments in Cases T-82/13, T-84/13, Total and its subsidiary, Total France, T-91/13 and T-92/13 rejected in their had, with other undertakings, entirety the actions brought by Samsung participated in a cartel concerning the SDI, LG Electronics and Philips and EEA market for paraffin waxes (from upheld certain pleas and arguments 1992 to 2005) and the German market raised by Panasonic and Toshiba, in for slack wax (from 1997 to 2004). relation to the fines totaling Total France was held jointly and approximately €1.47 billion imposed by severally liable with Total to pay a fine the European Commission by its of €128.163.000.
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