WIREDGOV

The OFT has concluded it has no grounds to take action against fuel card operator CH Jones over alleged abuse of dominance.

The OFT investigated the firm following a complaint that CH Jones was engaging in exclusionary conduct, the objective of which was said to be to remove competition, including its main rival, from providing diesel bunker cards (direct bunkering cards and pay-as-you-go bunker cards) to lorry operators.

Having issued a Statement of Objections, the OFT conducted a careful reassessment of the evidence and considered representations from CH Jones and the complainant. As a result, the OFT considers that it does not have sufficient evidence to demonstrate CH Jones' dominance. Therefore, the OFT has decided to close its investigation with a formal finding that on the basis of the information in its possession there are no grounds to take action.

Full details of the OFT's findings and analysis will be set out in the OFT's decision which will be published on the case page shortly.

NOTES

1. CH Jones operates bunker fuel cards under its 'Keyfuels' brand. These are payment cards to access diesel on the road and are typically used by Heavy Goods Vehicle (HGV) fleets. Companies purchase large quantities of fuel upfront, generally from a wholesaler or oil major. The bunker fuel card operator then arranges for this diesel to be delivered to refuelling sites. Drivers use the bunker fuel cards to access fuels from the various sites on the bunker network, with the customer paying CH Jones a handling charge based on the amount of diesel drawn down. This process is known as direct bunkering. Bunker card operators also buy diesel for resale to smaller customers which use cards on a Pay-As-You-Go (PAYG) basis when visiting sites or allow resellers to do the same using their networks. 
2. Following a complaint in 2010 the OFT undertook an investigation under the Competition Act 1998 and Article 102 of the Treaty on the Functioning of the European Union (TFEU). 
3. Under the Chapter II prohibition of the Competition Act 1998 and Article 102 of TFEU, the abuse of a dominant position is prohibited. 
4. The OFT issued a Statement of Objections in February 2011 to CH Jones setting out its provisional case under the Chapter II prohibition and Article 102 of TFEU, and providing CH Jones with the opportunity to make written and oral representations. The complainant was also provided with a non-confidential version of the Statement of Objections and made representations. 
5. A Statement of Objections gives notice of a proposed infringement decision under the Competition Act 1998 and/or Article 101 and/or Article 102 TFEU to the parties involved. It sets out the facts on which the OFT relies, the objections raised by the OFT, the action it proposes to take and the reasons for it. A Statement of Objections is not a decision document and the parties have the opportunity to make written and oral representations in response to the allegations, which the OFT will carefully consider before any final decision is made as to whether there has been an infringement of competition law. 
6. Following a careful assessment of the evidence and hearing representations from CH Jones and the complainant, the OFT considers that it does not have sufficient evidence to demonstrate CH Jones' dominance in the market for the provision of bunker card services to direct bunkering customers, and/or in a combined market comprising the provision of bunker card services to direct bunkering customers and the provision of PAYG bunker card services to customers operating HGV fleets. 
7. Under EU law, the OFT is precluded from making a finding that there has been no breach of the EU competition rules. Such a finding may only be made by the European Commission and the European Courts. The OFT may, however, close a case on the basis that there are no grounds for action on its part where on the basis of the information in its possession the conditions for the application of Article 101 and/or Article 102 TFEU are not met. 
8. Under the Competition Act 1998 (OFT's Rules) Order 2004 (SI 2004/2751), where the OFT has made a decision that there are no grounds for action because the conditions of the relevant UK or EU prohibition are not met, the OFT may publish that decision.