IN AN unprecedented move, the European Court of First Instance (CFI) overturned the European Commission’s decision to clear the merger between Bertelsmann Music Group (BMG) and Sony Music.
The surprise decision, which was announced in July, was the first time a merger clearance by the Commission has been reversed by the CFI.
However, BMG and Sony, advised by Slaughter and May and Cleary Gottlieb Steen & Hamilton respectively, this month appealed against the decision on both procedural and substantive grounds. The judgment followed an application by the Independent Music Publishers and Labels Association, advised by senior partner Scott Crosby and of counsel Jane Golding of Brussels-based competition specialist Crosby Houben & Aps, on 3 December 2004. The Commission cleared the merger between BMG and Sony in July 2004.
Meanwhile, in a highly unusual move, the Competition Appeal Tribunal (CAT) in August ordered the Office of Fair Trading (OFT) to pay costs to intervener Visa Europe in the high-profile credit card fee arrangements probe.
The OFT has also been ordered to pay costs to the appellants Mastercard UK Members Forum (MMF), Mastercard International and Royal Bank of Scotland (RBS) after the CAT upheld their appeal on interchange fee arrangements.
The total claimed by the appellants and Visa was just less than 5m, which represents more than 40 per cent of the OFT’s enforcement budget.
Separately, it is highly likely that the OFT will refer its market study into UK airports to the Competition Commission. The legal work arising out of the study is currently being handled by BAA’s in-house legal function. But if, as expected, the case goes to the Competition Commission, BAA will bring in outside help.
Longstanding BAA adviser Herbert Smith and Freshfields, which advised Ferrovial on its takeover of the company, are both vying for the role.