European Competition Law Newsletter – February 2015

February 2, 2015

Criminal Cartel Investigation in the UK Continues

There has been an important development in one of two UK criminal cartel cases against individuals which are currently being investigated by the Competition and Markets Authority (CMA). This case concerns suspected cartel conduct regarding the supply in the UK of galvanised steel tanks for water storage.

At a hearing on 26 January 2015 at Southwark Crown Court (London), Clive Dean and Nicholas Stringer both pleaded not guilty to the charge of committing the criminal cartel offence under UK law (section 188 of the UK Enterprise Act 2002). Their trial, before a jury, has now been set to start on 1 June 2015. One other individual, Peter Snee, has already pleaded not guilty. Any individual convicted for the criminal cartel offence faces jail time and/or an unlimited fine.

This will be an important and keenly watched trial, in particular since the CMA (and its predecessor, the Office of Fair Trading) has not had much success in the area of criminal cartel enforcement against individuals. To date only one case (arising out of the marine hose cartel) has been successful, while another (arising out of the British Airways/Virgin cartel) rather embarrassingly collapsed as a result of procedural problems.

The CMA is conducting a related civil investigation into whether businesses have infringed the UK Competition Act 1998 as a result of arrangements affecting galvanised steel tanks (for which they could be fined in the normal way).

Dismantling Track May Be Abusive

On 5 January 2015, the EC announced that it has sent a statement of objections (SO; preliminary statement of case) to Lithuanian railway incumbent AB Lietuvos geležinkeliai (LG) to investigate whether it limited competition on the rail markets in Lithuania and Latvia by removing a railway track.

In September 2008, LG suspended traffic on a railway track running between Lithuania and Latvia. One month later, LG dismantled the track and has not rebuilt it. The EC’s initial view is that since this limits the number of rail connections between Lithuania and Latvia for international freight traffic, it could limit competition on the rail markets in Lithuania and in Latvia, in particular, by preventing a major customer of LG from redirecting its railway freight to Latvia using the services of other rail operators. The EC considers that this could amount to the illegal abuse of a dominant position by LG.

This case shows once again that the scope of illegal abuses of a dominant position can be very wide. Companies which are struggling against the actions of a dominant or potentially dominant competitor, supplier or customer should take notice.

London Black Cabs Case; The Myriad Possibilities for State Aid Arguments

If there is any hint of state support for a competitor in the EU, a company should consider whether state aid arguments could be brought to bear, since ultimately any illegal aid might have to be repaid, with interest. The London black cabs case decided by the European Court of Justice (ECJ, the EU’s highest court) on 14 January 2015 provides an interesting example of the scope of state aid law, even though ultimately the arguments did not prevail.

In London, “black cabs” are permitted to use bus lanes, but minicabs are generally prohibited from doing so during the hours when bus lane restrictions are operational. An operator of minicabs was served with penalty notices due to the fact that two of its drivers had used a bus lane. The operator challenged those notices, claiming that the bus lanes policy constitutes state aid to the operators of black cabs.

The English Court of Appeal asked the ECJ whether this benefit for black cabs constitutes state aid. The ECJ found that it does not, since no state resources are involved and black cabs and minicabs in London are not comparable offerings.

The argument therefore failed. Nevertheless, it was very imaginative and shows the possibilities for using state aid arguments as a weapon.

SodaStream Fined for Limiting Competition in Refilling Its CO2 Cartridges

On 22 January 2015, the German competition authority (Bundeskartellamt) imposed a fine of EUR225,000 on SodaStream for abusing its dominant position in the market for refilling the CO2 cartridges used with its soda makers. This is an interesting case for companies which operate in similar types of markets, including markets for spare parts.

A 2008 German court judgment had found that hindering competitors from refilling CO2 cartridges represented an abuse of SodaStream’s dominant position, since this behaviour prevented consumers from taking advantage of alternative refilling possibilities. The company modified its behaviour. However, the Bundeskartellamt has now found that the company’s warning and safety instructions as well as disclaimers of warranties still gave customers and business partners the impression that SodaStream was exclusively entitled to refill the cartridges.

One example of this was SodaStream indicating that empty cartridges should be returned to the company itself or its authorised dealers. In addition, in one note it stated that unauthorised refilling could be illegal.

In addition to being fined, SodaStream has undertaken to correct the texts disputed by the Bundeskartellamt and for three years will attach a label to its CO2 cartridges stating that they can also be refilled by other companies that comply with the relevant legal provisions.

Additional European competition law news coverage can be found in our news section.

U.S. Antitrust

We publish a newsletter and bulletins on U.S. antitrust developments, as well as regular publications on numerous other topics.