Competitive Edge: Competition & EU Law August 2021

Keeping you up to date on Competition & EU law developments in Europe and beyond

Welcome to the August edition of our newsletter. After a lengthy consultation process, the EU Commission’s draft VBER and accompanying guidelines are finally out. In light of this, our main article is a practical analysis by our experts on what the future of EU distribution looks like. It explores the proposed changes and the opportunities the new rules offer.

Also in this edition, we are launching our brand new Podcast with a 15 min episode on sustainability and how it has impacted UK competition policy in recent months. As always we would love your feedback on this new project. If there are any topics you’d like us to cover in the podcast in the coming months, please let us know.

View the full newsletter here >

In focus

The EU Commission publishes its draft VBER – A new blueprint for distribution in the EU

The EU Commission published on 9 July 2021 its long-awaited draft vertical agreement block exemption regulation and accompanying guidelines. In this article, Ariane Le Strat, Pauline Kuipers and Jörg Witting explore the proposed new regime in depth and highlight where businesses will most likely need to adjust their distribution agreement to remain compliant.

Read more >

Competitive Edge: The Podcast

Episode 1 - Sustainability

Welcome to the first episode of Competitive Edge - The Podcast, a new series in which Bird & Bird's antitrust lawyers dissect topical competition law issues to help you understand how they may affect your business.

In this 15-minute episode our London colleagues Saskia King (Legal Director) and Ariane Le Strat (Senior Associate) take a look at sustainability and how it impacts competition policy in the UK.

The podcast explores recent guidance published by the UK’s CMA on horizontal sustainability agreements, touches on how sustainability is addressed in the CMA’s VABEO consultation relating to vertical (supply chain) agreements and, finally, explores the CMA’s guidelines on green advertising.

Click here to listen to the podcast >


The arrival of the recovery funds "NextGenerationEU" and the observance of State Aid rules

Brussels is back into motion. This year, the European Commission launched €750bn of common debt, the NextGenerationEU plan. The objective is to tackle the aftermaths of the Covid-19 pandemic with the most important economic stimulus the Union has ever done. Member States...

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For more information contact José Rivas and Ana Manzaneque 


When AI is too smart – Digital platform facilitated price collusion

The digital platform Ageras A/S is a bidding platform which facilitates contact between providers of accounting and bookkeeping services and potential customers. The platform operated with an automatised price standardisation mechanism, in which providers who were bidding for tasks...

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For more information contact Morten Nissen and Alexander Brøchner


Amendments to the Finnish Competition Act due to the ECN+ Directive

On 24 June 2021, the latest amendments of the Finnish Competition Act entered into force. The modifications were mostly based on the Directive 2019/1 (“ECN+ Directive”), which sought to ensure more effective enforcement of competition law across member states...

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For more information contact Päivi Tammilehto and Aarne Puisto 


The FCA publishes its annual report and gives an outlook of its enforcing action

The French Competition Authority (“FCA”) has recently published its annual report for 2020. The study provides a summary of the 2020’s major cases and gives an overview of the FCA’s focus for the coming years. During this year marked by the Covid-19 crisis, the report highlights...

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For more information contact Thomas Oster and Eliott Costet


TIM-DAZN agreement on Serie A broadcasting under Antitrust scrutiny

On 8 July 2021, the Italian Competition Authority (“AGCM”) opened an antitrust probe against TIM (the Italian incumbent telecom operator) and DAZN (the live sports streaming service) for possible anti-competitive behaviours stemming from the TV rights agreement...

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For more information contact Federico Marini Balestra and Lucia Antonazzi


The latest enforcement of UOKiK in vertical agreements

In July, the Polish Competition Authority (UOKiK) announced the initiation of a preliminary investigation and the fact that they conducted an inspection at the premises of Kärcher. The UOKiK suspects that Kärcher imposed minimum resale prices on distributors selling its professional...

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For more information contact Piotr Dynowski or Marcin Alberski


CNMC identifies competition problems on the online advertising sector

The Spanish Competition Authority (“CNMC”) has recently published a study about the online advertising sector in which it analyses the market competition conditions, with a stress on ‘big tech’ practices. The study mentions, among other things, some key factors to tackle...

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For more information contact Candela Sotés


Quick reactions prevented paint industry from being stained – The SCA investigated possible anti-competitive conduct in trade association

A recent investigation by the Swedish Competition Authority (“SCA”) into discussions in a trade forum demonstrates that it is crucial that participants react quickly if any information that may potentially be considered as anti-competitive is exchanged...

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For more information contact Morten Nissen and Alexander Brøchner

The Netherlands

Dutch competition authority ACM imposes EUR 20 million fine on orphan drug manufacturer Leadiant for excessive pricing

The Netherlands Authority for the Consumer and Markets’ (“ACM“) announced focus on drug price developments has finally come to a tangible enforcement result: a fine of almost EUR 20 million imposed on Leadiant, manufacturer of the orphan drug CDCA-Leadiant...

Read more >

This article was also published on the Kluwer Competition Law Blog.

For more information please contact Pauline Kuipers and Joost van Roosmalen

The UK

The UK Government consults on the new digital competition regime

Further to the UK Government’s plans, announced at the end of 2020, to set up a new digital competition regime (summarised in our earlier article), a consultation was published in July 2021 on the final design of the new “strategic market status” (SMS) pro-competition regime for...

Read more >

For more information please contact Anthony Rosen

Webinars & Events 

Importance of Antitrust Compliance for multinational companies

Watch this short interview conducted by Bird & Bird competition partner Federico Marini Balestra, in which Laura Ghio, Market Strategy, Quality and Compliance Manager of BMW Italy, discusses the strategic importance of an antitrust compliance programme for multinational companies and offers practical information based on her experience. The video is in Italian with English subtitles.

Watch the 5-minute interview here >

EU Competition Law Summer School 2021

16-20 August 2021 Cambridge, UK

Covering all areas of competition law, this residential, all-inclusive event is tailored to the needs of professionals and provides a firm understanding of EU competition law to help them shape their practical strategies. Each day builds on a key theme in competition law, through a combination of lectures, practical discussions, Q&As and case studies - ensuring that delegates are proficient in both the fundamentals, as well as currently developing hot topics, which include extended sessions on the digital economy, innovation, sustainability and FDI.

Instructed by top competition law minds, including regulators, in-house counsel, private practice lawyers and economists, each day will provide ample opportunities to network with peers and experts - establishing a pool of invaluable contacts for future business opportunities. Bird & Bird experts Anne Federle and Saskia King will present on Hard Core Cartels and Merger Proceedings.

Florence Competition Autumn School

Recent Developments in Competition Policy

3-7 October 2021

The Autumn School is an advanced course on recent developments in competition policy in Europe, the USA and the rest of the world. The Autumn School follows an inter-disciplinary approach: instructors are well-known academics, practitioners and competition agency representatives, both lawyers and economists. As well as in-person lectures, the Autumn School includes preliminary online activities and daily group exercises.

Partner Hein Hobbelen will give a lecture on "Leniency and dawn raids" and organise a group exercise on dawn raids on 6 October, together with Senior Associate Baptist Vleeshouwers.

Find out more and register here >

Florence Competition Autumn Conference

Classics Revisited: Market Definition, Horizontal and Vertical Agreements

8 October 2021

This conference, organised by The European University Institute (EUI) and Assonime aims to gather academics, practitioners, officials from national competition authorities, EU institutions, as well as industry representatives to discuss whether and to what extent EU competition rules should be updated to meet the challenges raised by the digital economy and to ensure closer coordination with EU environmental, industrial and trade policies.

In particular, the Florence Competition Autumn Conference will focus on the ongoing review by the European Commission of the Market Definition Notice (see our recent article here) as well as of the Guidelines and Block Exemption Regulations on Vertical Agreements and Horizontal Cooperation Agreements.

Partner Hein Hobbelen will participate in the panel, concerning the Revision of the Market Definition Notice.

For more information and to register click here > 

Bird & Bird news & publications

What will replace State aid rules in the UK?

If you are wondering, London partner Peter Willis dissected the draft legislation on the new 'subsidy control regime' in a handy diagram.

Download the diagram in PDF >

The UK government has published the draft legislation establishing a subsidy control regime. Many of the principles will be familiar from EU State aid law (for example, the definition of a "subsidy" is very similar to the definition of State aid). However, there are also important differences. In particular, the role of the CMA will be limited to reporting on a subsidy, on a referral by the granting authority. Unlike the European Commission, the CMA will not issue a decision clearing or blocking the subsidy. Instead, the authority will not be bound by the CMA's report and will take the decision itself (but will be at risk of judicial review if it doesn't comply with the rules and subsidy principles).

Many of the details remain to be filled in by regulations, guidance and "streamlined schemes" established by Ministers (perhaps a little like block exemptions). It's not yet clear whether it will avoid being "bureaucratic and burdensome", as the UK accuses the EU regime of being - or whether it will replace these features with an equally damaging lack of certainty.

September edition of Competitive Edge on the NextGenerationEU funds and National Recovery and Resilience plans

Next month’s newsletter will be entirely focused on the NextGenerationEU funds, the largest stimulus package in the history of the EU, designed to help Europe recover from the COVID-19 crisis. The main article will cover the plan from the European perspective and each country update will explain the salient points of the national recovery and resilience plans and relevant practical aspects, to help you understand what this means in your local jurisdiction.

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