European and Swedish Antitrust News (Mar 2, 2020)

Photo: H Ellgaard

The Swedish Patent and Market Court of Appeal has overturned previous decisions, ruling that FTI didn’t abuse its dominant position when restricting access to its infrastructure, arguing that it wasn’t an essential facility as downstream competitor TMR could establish its own network of public recycling stations. In other news, the Court of Appeal upheld the interim prohibition of Bruce’s exclusive agreements, the Commission approved the Assa Abloy – Agta Record merger subject to conditions, the SCA has ended its investigation of the music instrument market, and the SCA has extended yet another phase-I-investigation.

FTI didn’t abuse its dominant position when restricting access to its infrastructure. FTI and TMR are two competing Swedish organizations collecting and recycling household packaging materials on behalf of producers. FTI has an established network of public recycling stations and in 2012 started providing TMR access to those facilities before cancelling the agreement in 2016. The Swedish Competition Authority made an injunction decision in early 2018 that FTI wasn’t allowed to restrict its downstream competitor access to upstream essential infrastructure and the Swedish Patent and Market Court upheld that decision in 2019. But the Swedish Patent and Market Court of Appeal has now overturned those decisions, arguing that it would be possible for TMR to establish its own network of public recycling stations, in a ruling expected to impact the SCA’s future decisions on essential infrastructure. http://www.patentochmarknadsoverdomstolen.se/Domstolar/pmod/2020/1519-19.pdf

Interim SCA prohibition against Bruce’s exclusive agreement upheld. Bruce is a fitness aggregator, a new type of service in Sweden, selling a membership allowing customers to train at several different fitness studios. But Bruce has entered exclusive agreements with its fitness studio partners, blocking any competing aggregator from entry on this new service market. The Swedish Competition Authority acted quickly with an interim decision to prohibit Bruce’s exclusivity in December 2019. Both the Swedish Patent and Market Court and the Court of Appeal has now rejected Bruce’s appeal against the interim decision. http://www.patentochmarknadsoverdomstolen.se/Nyheter–pressmeddelanden/Interimistiskt-alaggande-for-foretag-som-erbjuder-konsumenter-traningsapp/

Commission approves Assa Abloy – Agta Record merger subject to conditions. Assa already owned a non-controlling interest in Agta but notified the EU Commission in January 2020 of a proposed acquisition. The Commission raised concerns the merger would significantly reduce competition in automatic pedestrian doors (such as sliding and revolving doors) in a number of countries and industrial high-speed doors in France, but Assa has obliged to divest these overlapping businesses of Agta. https://ec.europa.eu/commission/presscorner/detail/en/ip_20_346

Swedish Competition Authority ends investigation of music instrument sales. The SCA has investigated a number of manufacturers, distributors and retailers in the market for music instrument since conducting dawn raids in April 2018. The Swedish retailers had attempted to influence or prevent competition from global online retailers, but the SCA has now ended the investigation stating that the conduct couldn’t be classified as anti-competitive cooperation. Notably, one of the manufacturers/distributors involved, Fender, was fined in January 2020 by the UK CMA for breaking competition law by preventing online discounting for its guitars. http://www.konkurrensverket.se/globalassets/konkurrens/beslut/18-0187.pdf

Trend of extended phase-I-investigations in Sweden. At the request of the parties, the SCA’s phase-I-investigation of Gasum’s proposed acquisition of some of Linde AG’s assets will go on for 55 working days, far beyond the time limit of 20 working days. Law firm Roschier notes a trend and cautions that possible future expectations for “phase-one-and-a-half-investigations” could upset the SCA’s track record of fast merger filing reviews. https://www.roschier.com/newsroom/did-the-swedish-competition-authority-just-introduce-phase-one-and-a-half-in-swedish-merger-control/

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