EC fines Credit Agricole, HSBC and JP Morgan Chase 485 million Euros in euro interest rate derivative cartel. Dated 07.12.2016
EC has fined Crédit Agricole, HSBC and JPMorgan Chase, a total of € 485 million for participating in a cartel in euro interest rate derivatives. It was discovered that the banks colluded on euro interest rate derivative pricing elements, and exchanged sensitive information, in breach of EU antitrust rules.Interest rate derivatives are financial products such as forward rate agreements, interest rate swaps or interest rate options, which are used by companies to manage the risk of interest rate fluctuations or for speculation. The ruling by the EC follows a discovery by the EC that between September 2005 and May 2008, a total of seven banks (Barclays, Crédit Agricole, HSBC, JPMorgan Chase, Deutsche Bank, RBS and Société Générale) were operating a cartel involving the euro interest rate derivate market. The participating traders of the banks were in regular contact through corporate chat-rooms or instant messaging services with a view to distort the normal course of pricing components for euro interest rate derivatives. Crédit Agricole, HSBC and JPMorgan Chase chose not to settle this cartel case with the EC, unlike Barclays, Deutsche Bank, RBS and Société Générale, with whom the EC reached a settlement concerning the same cartel in December 2013.
EC fines rechargeable battery producers 166 million euros in cartel settlement. Dated 12.12.2016
EC fined Sony Corporation (‘Sony’), Panasonic Corporation (‘Panasonic’) and Sanyo Electric Co. Ltd. (‘Sanyo’) a total of 166 million euros for coordinating prices and exchanging sensitive information on supplies of rechargeable lithium-ion batteriesused in mobile phones, laptops etc. Samsung SDI was not fined as it had revealed the existence of a cartel. All the other companies have acknowledged their involvement in the cartel and have agreed to settle the matter with the EC.EC’s investigation found that Samsung SDI, Sony, Panasonic and Sanyo took part in bilateral, and sometimes multilateral, contacts in order to avoid aggressive competition in the market for lithium-ion batteries. In particular, the four companies (i) agreed on temporary price increases in 2004 and 2007 triggered by a temporary increase in the price of cobalt, a raw material used in the production of lithium-ion batteries; and (ii) exchanged commercially sensitive information such as supply and demand forecasts, price forecasts or intentions concerning particular competitive bids organised by specific manufactures of products such as phones, laptops or power tools. Samsung SDI received full immunity for revealing the existence of the cartel and avoided penalties to the tune of 57,748,000 Euros. Sony, Panasonic and Sanyo also benefited from reductions of their fines.
United Kingdom – Competition and Markets Authority (‘CMA’)
CMA disqualifies managing director of Trod Ltd. for personal contribution towards breach of competition law. Dated 01.12.2016
The CMA has secured a disqualification undertaking from Mr. Daniel Aston, managing director of the online poster supplier Trod Ltd. wherein Mr. Aston has undertaken not to act as a director of any UK company for 5 years. Under the Company Directors Disqualification Act, 1986 the CMA can seek disqualification of an individual from holding company directorships where that individual has been director of a company which has breached competition law. This is the first time that the CMA has used the power to seek disqualification for competition law breach. Vide its order dated 12.08.2016 CMA had held that Trod Ltd. breached competition law by agreeing with one of its competing online sellers that they would not undercut each other’s prices for posters and frames sold on Amazon’s UK website. Mr. Aston was the managing director of Trod Ltd. at the time of the breach and since he personally contributed towards the breach, CMA secured his disqualification.
India – Competition Commission of India (‘CCI’)
CCI dismisses complaint against Mercedez Benz, CCI Case No. 93/2015 Dated 13.12.2016
The Informant had purchased two Mercedez Benz buses from M/s Mercedez Benz India Pvt. Ltd (‘OP’) for commercial use in Kutch, Gujarat in the year 2012. It was alleged that the OP had abused its dominant position as the buses had manufacturing defects in the fuel tank. It was also alleged that there were hardly any efficient authorized service stations of Mercedez Benz in Gujarat (India) and that they were ill equipped to repair any damage to the buses. It was stated that the Informant suffered huge losses as the buses often remained at the service station for over 10 months on account of which the Informant could not make profits or make loan repayments on time. It was also averred that the spare parts of the buses were not easily available in the market and that the authorised service centre of OP used to charge higher prices for the spare parts than their MRP. The CCI observed that the Informant is primarily aggrieved due to lack of proper after sales service network, delay in availability of spare parts and high prices charged by authorised service centres for spare parts with respect to Mercedes Benz buses. The information was dismissed and the matter closed under Section 26(2) of the Competition Act, 2002 (‘Act’) as the said allegations did not reveal any competition issue.
CCI dismisses complaint against Indian Oil Corporation Ltd, CCI Case No 30/2016 Dated 10.11.2016
Indian Oil Corporation Ltd (‘OP-1’) isinter alia engaged in the business of extracting and selling Liquefied Petroleum Gas (‘LPG’) whereas Olympic Flame Indane Gas (‘OP-2’) and Jaishiv Indane Gas Service (‘OP-3’) are distributors of OP 1. The Informants were residents of Badaun district of Uttar Pradesh. They were the consumers of the LPG sold by OP-1 and were primarily aggrieved by the conduct of OP 1 in arbitrarily transferring their LPG consumer numbers from OP-2 to OP-3 without taking their consent. It is alleged that said conduct of OP-1 amounts to imposition of unilateral terms on the consumers in contravention of the provisions of the Section 4 of the Act. On examination of the allegations, the CCI noted that the OP-1 is not in a dominant position in the market for provision of services for distribution of LPG cylinders in Badaun district of Uttar Pradesh. In this light, the CCI noted that the conduct of OP-1 need not be examined in terms of the provisions of Section 4 of the Act. The information was therefore dismissed by the CCI.
CCI dismisses allegations of anticompetitive conduct against National Dairy Development Board and Amul Dairy, CCI Case No 69/2016 Dated 10.11.2016
The Informant was primarily aggrieved by the terms and conditions of the tender dated 12.05.2016 floated by Amul Dairy (Kaira District Co-operative Milk Producer’s Union Ltd.) (‘OP-2’) inviting offer for ‘design, manufacturing, supply,erection, testing and commissioning of 28.5 TPH @ F &A 100 degree Centigrade FO/NG Fired Boiler PLC operated with duel fuel economiser’ for dairy plant of OP-2 in Anand, Gujarat. Upon consideration of the allegations, the CCI noted that a procurer, as a consumer, can stipulate certain technical specifications/ conditions/ clauses in the tender document as per its requirements which by themselves cannot be deemed anti-competitive. The CCI further noted that the party floating the tender is a consumer and it has the right to decide on the appropriate eligibility conditions based on its requirements. The CCI also observed that a consumer must be allowed to exercise its choice freely while purchasing goods and services in the market. In light thereof, the allegations of anti-competitive conduct were dismissed by the CCI.
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.
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
Parent company of Bausch + Lomb to divest Paragon Holding I, Inc. to settle FTC charges regarding its acquisition of Paragon Holdings I, Inc. Dated 07.11.2016
Valeant Pharmaceuticals International, Inc. (‘Valeant’), the parent of Bausch + Lomb, has agreed to divest Paragon Holdings I, Inc. (‘Paragon’) to settle FTC charges that its acquisition of Paragon violated Section 7 of the Clayton Act, 1914 and Section 5 of the Federal Trade Commission Act, 1914. Before the acquisition, both Valeant and Paragon produced polymer discs (commonly known as GP buttons) which are used to make rigid gas permeable contact lenses. According to the complaint the acquisition eliminated competition between Valeant and Paragon in the relevant markets for GP buttons used to produce three types of lenses: (i) orthokeratology worn to reshape the cornea; (ii) large-diameter scleral lenses which cover the white of the eye and are used: after eye surgery; for corneal transplants, and to treat eye disease; and (iii) general vision correction lenses. The complaint stated that the acquisition combined the two largest manufacturers of GP buttons, accounting for more than 70 percent of USA sales across all three button types. The complaint further stated that the acquisition has enabled Valeant to exercise market power unilaterally in the relevant market for GP buttons by increasing prices, reducing volume discounts, decreasing innovations and reducing product distribution options. In terms of the settlement Valeant will sell Paragon in its entirety to a newly created entity, Paragon Companies LLC. Under the settlement, Paragon Companies LLC also will acquire the assets of Pelican Products LLC. Pelican Products LLC is a contact lens packaging company that Valeant acquired after its purchase of Paragon. Pelican Products LLC is the only producer of FDA-approved vials used for shipping some GP lenses.
Abbott Laboratories to divest medical device business to settle FTC charges regarding its proposed acquisition of St. Jude Medical Inc. Dated 27.12.2016
USA based global healthcare company Abbott Laboratories (‘Abbott’) has agreed to divest two medical device businesses to settle FTC charges that its proposed $25 billion acquisition of St. Jude Medical, Inc. (‘St. Jude’) would likely be anticompetitive. According to the complaint the proposed acquisition would harm competition in the USA markets for: (i) vascular closure devices, which are used to close holes in arteries from the insertion of catheters, and (ii) steerable sheaths, which are used to guide catheters for treating heart arrhythmias. The complaint alleges that the merged firm would control more than 70 percent of the market for vascular closure devices. Further, the acquisition would eliminate competition between St. Jude and Abbott in the market for steerable sheaths where St. Jude has held a near-monopoly for more than a decade and Abbott had recently entered the market. The proposed consent order requires the parties to divest to Tokyo based medical device maker Terumo Corporation (‘Terumo’) all rights and assets related to St. Jude’s vascular closure device business and Abbott’s steerable sheath business. Terumo does not currently sell any vascular closure devices or steerable sheaths but has sold related products and medical devices in the USA market for more than 30 years, and according to FTC possesses the industry experience and reputation necessary to replace competition. The order requires both companies to assist Terumo with establishing its manufacturing capabilities.
Republic of India
CCI approves merger of LG Chem and LG Life Sciences, C-2016/10/440. Dated 15.11.2016
LG Chem Ltd. is a company incorporated in Korea organized into a (i) Basic materials and Chemicals Division (ii) Energy Solutions Division (iii) IT and Electronic Materials Division and (iv) Advanced Materials Division. LG Life Sciences Ltd. which is a company incorporated in Korea is primarily engaged in the manufacture of pharmaceutical products and speciality chemicals. LG Chem Ltd and LG Life Sciences Ltd. are both part of the LG Corporation. Upon receipt of the notice, the CCI noted that there is no horizontal overlap between LG Chem Ltd. and LG Life Sciences Ltd. in India. With regard to the vertical overlap, the CCI noted that LG Chem supplies acetone to LG Life Sciences Ltd. which is utilized by the latter for contract manufacture of cephalosporin antibiotics which is then sold to a third party pharmaceutical company. The third party pharmaceutical company sells the products sourced from LG Life Sciences Ltd. under its brand name across the world, including in India. In this regard, the Commission observed that the nature and extent of existing customer supplier relationship is insignificant to cause any competition concerns. The combination was accordingly approved under Section 31(1) of the Act.
United Kingdom (UK)
Cineworld Group plc/Empire Cinemas Limited Merger Inquiry. Dated 12.12.2016
On 12.08.2016, Cineworld Group plc (‘Cineworld’) acquired five cinemas from Empire Cinemas Limited (‘Empire’) (the ‘Merger’). The cinemas acquired by Cineworld are Empire Basildon, the Empire Hemel Hempstead, the Empire Poole, the Empire Leicester Square, and the Empire Bromley (‘Target Cinemas’). Cineworld and Empire are collectively referred to as the ‘Parties’. It was found by the CMA that the Parties overlap in the supply of cinema exhibition services in the UK, at a national and at a local level, in relation to three of the five Target Cinemas (the Empire Leicester Square, the Empire Bromley and the Empire Hemel Hempstead). The CMA was of the opinion that the acquisition has increased Cineworld’s share of supply at the national level only to a small extent and there are a number of strong national competitors at the national level. Therefore the Merger has not given rise to any concerns in the supply of cinema exhibition services on a national level. To assess the impact of the merger on cinema exhibition services at a local level the CMA considered: (i) the extent of geographic overlap between the Parties based on their relative locations; (ii) the number and competitive strength of other cinema exhibition suppliers within the local area; (iii) evidence from a customer survey which was used to analyze substitution for customers of one of Cineworld’s existing cinemas namely Cineworld Luton. On the basis of this evidence the CMA concluded that the Parties do not compete closely and that sufficient competitive constraints will remain post-Merger. It was held that the Merger does not give rise to a realistic prospect of a substantial lessening of competition as a result of horizontal unilateral effects. The Merger was therefore not referredunder section 22(1) of the Enterprise Act 2002.
State Bidco Limited/ Hi-Life Diners Club Limited Merger Inquiry. Dated 03.11.2016
On 21.06.2016 Bridgepoint Group Limited (‘Bridgepoint’) through State Bidco Limited, a subsidiary of Bridgepoint’s affiliated entity Dining Club Group Limited, acquired Hi-Life Diners Club Limited (‘Hi-Life’) (‘Merger’). Dining Club Group Limited and State Bidco Limited (‘Dining Club Group’) and Hi-Life are together referred to as the Parties. The Parties were found to overlap in the supply of subscription-based memberships for discounted restaurant dining (‘discount dining cards’) to consumers and business customers in the UK. The CMA found that although the business models and product characteristics of the Parties were similar to each other, however other sources of restaurant discounts can be regarded as alternatives. Therefore the CMA assessed the impact of the Merger with respect to consumers and business customers in a frame of reference wider than the supply of subscription-based memberships for discounted restaurant dining to consumers including other discount restaurant offers, such as vouchers accessible through voucher websites or directly from restaurants. On the basis of the evidence available with it, the CMA was of the opinion that Hi-Life does not pose a significant constraint on Dining Club Group and that there are many alternative options available to both consumers and business customers to the products of the Parties. The CMA held that these constraints taken together are sufficient to ensure that the Merger does not give rise to a realistic prospect of a substantial lessening of competition as a result of horizontal unilateral effects. The Merger was therefore not referredunder section 22(1) of the Enterprise Act, 2002.
European Union (‘EU’)
EC approves acquisition of Sanofi’s animal health business-Merial by Boehringer Ingelheim (‘BI’). Dated 09.11.2016
The proposed transaction leads to a combination of two key competitors in the development, manufacturing, marketing and sale of animal health products across the European Economic Area. Sanofi and BI are collectively referred to as the Parties.EC’s investigation focused on overlaps between BI and Merial’s activities in the following areas:(i) swine and ruminant vaccines,(ii) anti-inflammatory drugs in injectable and oral forms, anti-microbials and other specialty products and (iii)Osteoarthritis feed nutrients for pets. On investigation, the EC discovered that there are potential competition concerns, as either BI or Merial was a strong player in the market, while the other was either already competing or developing a product in order to do so. In view of these findings and the limited number of other players in the market, the EC concluded that the elimination of one of the merging companies would harm competition for the supply of these products in Europe, with a risk of price increases and loss of quality of service and supply. In order to address the concerns the Parties offered to divest a number of Merial’s marketed and pipeline products, including its existing vaccines Circovac, Progressis, Parvovax, Parvovurax and Mucossifa and pharmaceuticals Ketofen, Wellicox, Allevinix, Genixine, Equioxx Injectable and Equioxx Paste. The Parties also proposed a suitable purchaser with strong capabilities and incentives to run the divested businesses successfully in the long term. The EC concluded that the commitments addressed the identified competition concerns and agreed to the merger subject to the said divestures.
In house contributors:
Avsi Malik Sharma
Doc ID: CL/18/17
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