Competitive Edge: Competition & EU Law November 2021
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Keeping you up to date on Competition & EU law developments in Europe and beyond.
Our main article this month covers the interplay between competition and procurement law and highlights where the rules go in different directions and what pitfalls you need to be aware of in practice. Following our curated updates from numerous jurisdictions, we also invite you to listen to a new podcast episode in which our financial services and competition law experts discuss the various ongoing streams in Europe surrounding Apple’s Near Field communication antenna - better known as NFCs. Furthermore, you will also find invitations to join our colleagues as they speak at various events and webinars, including our upcoming webinar focusing on how businesses can adapt their distribution agreements to seize opportunities under the new vertical block exemption regulation regime, while remaining compliant with competition rules.
Happy reading – and as always – please let us know should you have any specific topics you wish the Competitive Edge newsletter or podcasts to cover.
In focus
Recovery of unlawful state aid in asset deals: why is it a challenging risk for purchasers?
Sometimes recovery of unlawful State aid may require the recovery to be extended to an undertaking to which the original beneficiary has transferred or sold part of its assets. The possibilities for the purchaser to receive full indemnification in asset sale and purchase agreements in such situations are limited.
The European Commission updates its distribution regime: what you need to know
Webinar recording
The EU Commission recently published its long-awaited draft Vertical agreement Block Exemption Regulation (VBER) and accompanying guidelines.
In this webinar, Competition law experts Pauline Kuipers, Jörg Witting and Ariane Le Strat walked participants through the changes and opportunities arising out of the new regime, focusing on how businesses can adapt their distribution agreements to seize opportunities under the new regime while remaining compliant with competition rules. The speakers also covered the possible divergences and synergies with the new UK regime on vertical agreements.
EU
The Sumal-judgement: reshaping the notion of ‘undertaking’ in EU competition law
Sumal – a new landmark case on the notion of ‘undertaking’ in EU competition law will cast its shadow over the next years of public and private enforcement. This blog discusses the most pressing topics covered by the ECJ in its Sumal-judgement and attempts to highlight its...
For more information contact Pauline Kuipers or Joost van Roosmalen
Czech Republic
Competition concerns on the Czech telecommunications market
According to the Commission's preliminary assessment, the network sharing agreements (“NSAs”) between T-Mobile CZ, O2 CZ, and Czech telecom infrastructure provider CETIN, as well as the Mobile Network Services Agreement (“MNSA”) between O2 CZ and CETIN may...
For more information contact Vojtěch Chloupek or Jiří Švejda
Denmark
Infringing competition law is no child’s play - Significant fines for RPM in Denmark
A Danish company producing clothes, furniture and other products for children has accepted to pay a fine of DKK 1,800,000 (EUR 240,000) for infringement of the Danish competition Act’s ban on resale price maintenance. In addition, a member of management of...
For more information contact Morten Nissen or Frederik Haugsted
France
FCA will soon adopt a new framework document on competition compliance programmes: is yours up to standard?
The French Competition Authority (FCA) recently opened a public consultation with a view to publish a new framework document on competition compliance programmes (deadline to submit contributions is 10 December 2021). This follows a request from...
For more information contact Thomas Oster or Eliott Costet
Germany
New guidelines on the setting of fines published: Germany’s Federal Cartel Office adopts new approach to setting fines, accepting compliance as a mitigating factor
The Federal Cartel Office (“FCO”) has published its new fining guidelines (“Fining Guidelines”), following legislative changes made to the German Competition Act (“GWB”) with the 10th GWB amendment which entered into force earlier this year...
For more information contact Dr. Stephan Waldheim or Maren Steiert
Italy
Italian Competition Law Reform receives greenlight by the Government
On 4 November, the Italian Council of Ministers approved the draft “Annual Competition Law”, pursuant to Article 47 of Law n. 99/2009, which empowers the Italian Government with the possibility to adopt a set of rules in the competition law field, on an annual basis...
For more information contact Federico Marini Balestra or Lucia Antonazzi
Poland
UOKiK investigates online platforms and popular influencers
Last month UOKiK announced several enforcement actions concerning online platforms and Internet celebrities active in the field of influencer marketing. At first, UOKiK presented its investigation into the advertising practices of influencers active on...
For more information contact Piotr Dynowski or Marcin AlberskiNetherlands
Dutch regulator continues its battle against misleading sustainability claims
The Netherlands Authority for Consumers and Market (ACM) has recently announced that it will further investigate six companies in the clothing sector because of possible misleading practices concerning sustainability claims. In May 2021, the ACM contacted over 170 businesses in...
For more information contact Pauline Kuipers or Joost van Roosmalen
Hungary
Ceramic bricks market: conclusions of the first ever accelerated sector inquiry
The Hungarian Competition Authority (“GVH”) concluded its accelerated sector inquiry, the first ever of this kind of procedure, in relation to the ceramic brick market on 23 September 2021. In its conclusions, the GVH encourages joint purchasing organizations and...
For more information contact Dániel Arányi or Rebeka Szopkó
Italy
Waste-recycling sector under scrutiny in two abuse of dominant position proceedings in Italy
Out of the three proceedings for abuse of dominance opened by the Italian Competition Authority (“ICA”) so far in 2021, two deal with environment protection, and relate, more specifically, to the waste-recycling sector. The first proceeding relates to waste-management of...
For more information contact Federico Marini Balestra
Poland
UOKiK conditionally clears the Air Liquide / Betamed transaction
Following a year-long investigation, on 27 August 2021, UOKiK gave its conditional approval for Air Liquide’s acquisition of Betamed. Both companies operate, i.a., in regulated markets for medical services funded by the Polish National Health Fund (NFZ). That is why during its...
For more information contact Piotr Dynowski or Marcin Alberski
Netherlands
Dutch ACM imposes first ever fine for alleged Resale Price Maintenance on Samsung
The Dutch competition authority ACM fined Samsung Electronics Benelux B.V. (“Samsung”) almost € 40 million for coordinating the retail prices of Samsung television sets together with retailers. This is the first time the ACM has imposed a fine in relation to resale price maintenance (“RPM”). In short, according to the ACM, Samsung played a central role in...
For more information contact Pauline Kuipers or Tialda Beetstra
Singapore
Competition Developments During COVID
COVID-19 has disrupted entire industries and communities, shuttering many businesses but also creating new opportunities. Businesses that have survived, and even thrived, have done so by innovating and adapting. At various points during the pandemic, businesses and...
For more information contact Sandra Seah, Chelsea Chan or Jonathan Kao
Spain
CNMC examines LaLiga's tender proposal to sell broadcasting rights for national football competitions
The Spanish Competition Authority (“CNMC”) has recently published a report in which it analyses the conditions proposed by LaLiga to sell the broadcasting rights for future seasons of the National Football League’s first and second division in Spain...
For more information contact Candela Sotés or Miguel Orellana
Sweden
An outlook on algorithmic pricing
Pricing algorithms have been proven to be especially challenging to regulate from a legislative competition law perspective. Algorithmic monitoring of competitors’ prices does not necessarily constitute an infringement if there is no evidence of an agreement to collude...
For more information contact Morten Nissen or Catherine Laflamme Jansson
The UK
Reforming Competition and Consumer Policy
It’s been at least two years in the making following the publication of Lord Tyrie’s letter of 2019 and the Penrose report of 2021, but finally the proposals for reforming UK competition policy, consumer rights and consumer law enforcement were released for consultation in July 2021...
For more information contact Saskia King, Robert Turner or Sophie Stoneham
The ICO and the Proposed Competition Duty
We previously reported on the UK’s Department for Digital, Culture, Media & Sport (DCMS) Consultation paper, launched in September, setting out its proposals on the future of data protection law in the UK (Consultation). The Consultation remains open to comments until...
For more information contact Saskia King or Amy Donlevey
Podcasts, Webinars & Events
Competitive Edge The Podcast
Episode 2: The UK’s Green Claims Code
This 10-minute podcast explores the UK’s Green Claims Code which sets out the six guiding principles any businesses who make environmental claims need to comply with. It also touches on how this fits in with the CMA’s other work, online platform moderation, and the challenges we foresee for businesses complying with the Code.
Click here to listen to the podcast >
Informa Advanced EU Competition law conference
22-24 November, Brussels
This annual event brings together regulators, in-house counsel, lawyers and economists to dissect current policies and shape strategies for the future.
Competition partner Hein Hobbelen will speak on Data Portability in EU Competition Law, including DMA.
Register through this link to receive a 30% discount >
Informa Competition law in Transport conference
29-30 November (virtual)
The aim of this conference is to analyse how the transport sector is responding to the challenges of sustainability, the impact of Covid, multijurisdictional mergers in light of Article 22 and FDI rules, and then deep dive into specific developments affecting each of the sectors during streamed discussions.
Competition partner Morten Nissen will speak on the topic of ‘Sustainability & the Green Deal: Practical Implications for the Transport Sector.’
For more information and to register click here >
Preparing for a dawn raid
Webinar recording
In this webinar hosted by LexisNexis, our experts Peter Willis and Saskia King discuss dawn raids. They cover how you can prepare and plan for a dawn raid, and crucially, take viewers through the first moments of inspector arrival.
For more information click here >
EU Competition Law Winter School
Monday 6 - Friday 10 December
Downing College, Cambridge, UK
This event organised by Informa is your AZ of EU competition law. You will gain a firm understanding of the fundamentals and build on them through multi-format sessions to shape practical strategies & address current challenges.
- All-inclusive residential event
- Learn in several different formats during the day
- Reinforce that learning & connect with peers at the evening activities
Our partner Anne Federle will lead the session titled "Hard Core Cartels: Principles and Practical Examples". Legal Director Dr. Saskia King will chair day 4, speak on Merger Proceedings, lead an interactive workshop on mergers and a session with Ofgem and the CMA titled “Navigating the Competition Process.”
Receive a 20% discount when registering for the event here >>
Annual ERA Conference on European Competition Law 2021
Trier / Online 9-10 December 2021
Hybrid conference
Key topics include:
- Latest policies and initiatives of the European Commission
- Revision of competition law instruments
- Competition policy and sustainability
- Recent developments in the ICT sector
- Competition and pharma
- Notable judgments of the CJEU in the field of competition law
- Latest cases and developments at national level
Our Brussels-based competition partner Anne Federle and Werner Berg (Baker McKenzie) will discuss the ongoing revision of the Vertical Block Exemption Regulation, the Block Exemption Regulations for horizontal cooperation agreements, the Market definition notice and Procedural and jurisdictional aspects of EU merger control.
For more information and to register click here >
To benefit from a 25% discount please use the code 2021ACcompetition in the 'Comments' field when registering.
Green Advertising & Sustainability in the Netherlands
Webinar recording
Watch the second webinar in our series on Green Advertising and Sustainability focused on the Netherlands. The webinar spotlights:
- The new Guidelines on sustainability claims from the Dutch Authority for the Consumers and Markets (ACM). The ACM has announced that it will start enforcing misleading sustainability claims as early as this year on the basis of this Guideline - presented by Lisette den Butter & Tessa van den Ende (Commercial group)
- The draft Guidelines on sustainability agreements, in which the ACM offers more room for cooperation between companies in the field of sustainability - presented by Tialda Beetstra (Competition & EU group)
- The legal intricacies of upcycling (the reuse of existing materials): a trend that is becoming increasingly mainstream given the development of a circular economy - presented by Nina Dorenbosch (Retail & Consumer and IP group)
Restructuring and Recovery funds for the digitalization of the retail sector in Spain
Virtual round-table conference recording
José Rivas recently presented on the topic of NextGenerationEU funds at the round-table conference organised by the Spanish Retail Association titled Mesa redonda: 'Ayudas del Fondo
Watch the recording (in Spanish) here >
News & publications
Our experts contribute to leading Dutch Market & Competition journal
Competition & EU Partner Pauline Kuipers (The Hague) and Legal Director Anthony Rosen (London) contributed the following articles to a special issue focused on the DMA of the Markt & Mededinging (Market & Competition) journal.
- The Digital Markets Act in a varying perspective (Pauline Kuipers and Paul Lugard)
- Regulating digital competition after Brexit – will the UK choose its own course? (Anthony Rosen)
The Market & Competition (M&M) publication deals with national competition law in the broadest sense. The journal combines scientific issues with Dutch legal practice.
For more information click here >
Digital Markets: Update on the DMA
In his "News from Brussels" column in this month's issue of Iberian Lawyer magazine, José Rivas updates us on the DMA - Digital Markets Act. His article covers:
- The definition and scope of application of the DMA
- National Competition Authorities and parallel application of Competition law
- Timeline and next steps
