Keeping you up to date on Competition & EU law developments in Europe and beyond
The EU Court of Justice provides guidance for the antitrust assessment of "pay-for-delay" agreements in the pharmaceutical sector
On 30 January 2020, the Court of Justice of the European Union rendered its preliminary ruling in C-307/18 – Generics (UK) and Others v CMA (Paroxetine) in response to a request from the UK Competition Appeal Tribunal regarding the lawfulness of the decision with which the Competition and Markets Authority (UK) held that "pay-for-delay" agreements between the holder of a pharmaceutical patent and generic drug manufacturers infringed Article 101 TFUE and constituted an abuse of a dominant position in the relevant market.
The Court's judgment is also of note as it addresses fundamental issues that been debated within the area of EU competition law. Furthermore, considering the cases currently pending before European courts in this area, the principles set out in the Decision are intended to lead the approach of European case law on "pay-for-delay" settlements. Evidence of this effect can already be found in the Opinion of the Advocate General in Lundbeck issued on June 4, 2020. Read more.
New UK regulatory regime on the horizon to tackle digital platforms
The CMA proposes regulatory reform to tackle digital platforms. The measures include a code of practice with three principles: fair trading, open choices and trust and transparency, granting powers to the Digital Markets Unit to enforce the code and this will now be taken forward by the Digital Markets Taskforce. Read more.
Bird & Bird news
Updates from our jurisdictions
Consultation regarding the EU Market Definition Notice
The Commission took its next steps in the review of the European Competition law rulebook. On 26 June 2020, the Commission published a consultation on the review of the EU Market Definition Notice with a deadline to respond by 9 October 2020.
For more information contact Anne Federle and Pauline Van Sande.
ACCC expresses preliminary concerns over Google's proposed acquisition of Fitbit
The Australian Competition and Consumer Commission (ACCC) continues to exercise a high degree of scrutiny in relation to 'killer acquisitions' in the digital sector, expressing a number of preliminary competition concerns in relation to Google's proposed acquisition of Fitbit.
The ACCC's concerns in relation to this proposed acquisition are set out in its Statement of Issues, and include concerns that the acquisition may further entrench Google's dominant position in the supply of data-dependent health services and ad tech services, and adversely affect competition in those markets.
For more information contact Thomas Jones.
Belgian Competition Authority adopts new Guidelines
On 22 May 2020, the Belgian Competition Authority (BCA) published three new guidelines: (i) new guidelines regarding the informal opinions of the BCA's President; (ii) new guidelines regarding the calculation of fines; and (iii) new leniency guidelines. In our article we set out the most important differences between the old guidelines and the new ones.
Additional note: In our May newsletter, we reported on the Dossche Mills/Ceres transaction. It is understood that this transaction has been abandoned by the parties and that thus no decision will be adopted by the Belgian Competition Authority in this case.
For more information contact Hein Hobbelen and Pauline Van Sande.
The Czech Office for the Protection of Competition imposed fines for illegal cartel agreement linked to rail freight transport
The Czech Office for the Protection of Competition (Office) imposed fines in a total amount of approx. EUR 690,000 on four companies engaged in the field of international rail freight transport for illegal cartel agreement concluded between them. One participating company was not fined because it provided the Office with information and evidence of the existence of a cartel under the leniency program.
For more information contact Vojtech Chloupek.
The DCCA conditionally clears an acquisition in the natural gas sector subject to the divestment of 107,000 consumers
On 28 May 2020, the Danish Competition and Consumer Authority (DCCA) received a complete notification of SEAS-NVE A/S’ (SEAS-NVE) acquisition of control of several subsidiaries of Ørsted A/S.
The DCCA approved the transaction subject to the commitment to divest all its 107,000 natural gas consumers in one of the acquired subsidiaries.
For more information contact Morten Nissen.
Publication of a study on e-commerce and competition law
The French Competition Authority (FCA) has recently published a study on competition law and e-commerce which presents the competition dynamics as well as the anti-competitive practices that may arise in the e-commerce sector. The study is in line with the objectives that the FCA has set for the year 2020, the “Digital” sector being listed as its main priority.
Primarily intended at increasing competition law awareness, the study does not provide any new information in terms of competitive analysis but constitutes undoubtedly a reference guide for companies active in the sector.
For more information contact Florence Leroux.
Facebook’ abuse of dominance over data collection confirmed by the Federal Court of Justice
The Federal Court of Justice (FCJ) has provisionally confirmed the Federal Cartel Office’s (FCO) decision which prohibited Facebook from collecting and processing data of Facebook users generated on other platforms and services like Whatsapp and Instagram without their explicit consent.
In line with the FCO’s decision, the FCJ found that Facebook abused its dominant market position by conditioning the use of its social network on users’ acceptance of the cross-processing of their data from the Facebook platform itself with those from third party services (including WhatsApp, Instagram and third-party websites/apps). The FCJ’s antitrust section thus overruled the decision of the Higher Regional Court of Düsseldorf which had ordered the suspensive effect of Facebook’s appeal of the FCO’s decision.
For more information contact Jörg Witting.
Loosening restrictions on non-compete for start-ups
The Hungarian Competition Authority (GVH) allowed non-compete undertakings beyond its past practice in a scale-up investment round into the Hungarian software developer training start-up, CodeCool.
According to the GVH, minority non-controlling key employee stakeholders and strategic investors may undertake non-compete obligations even for the two years following the sale of their respective stakes in a start-up, because their know-how and contribution to the start-up is essential and therefore such an obligation is justified in order for the financial investor to recoup its investment.
For more information contact László Zlatarov.
A Spanish Regional Court requests for an ECJ's preliminary ruling on procedures for claiming damages
The application of the transitional regime of the Damages Directive (No. 2014/104), of 26 November 2014, has created legal uncertainty regarding the statute of limitations of damages claims.
On 12 June 2020, the Regional Court of León referred questions to the European Court of Justice (ECJ) for a preliminary ruling on the possibility of the retroactive application of the provisions concerning the period of limitation to bring damages actions and the judicial assessment of the damages caused by anticompetitive infringements.
For more information contact Patricia Liñán.
Dutch District Court annuls first ministerial merger licence (PostNL/Sandd)
On 11 June 2020, the District Court of Rotterdam (District Court) annulled the decision of the Minister of Economic Affairs & Climate (Minister) to grant a licence for the acquisition of alternative postal operator Sandd by PostNL. In an earlier decision, the Dutch Authority for Consumers and Markets (ACM) prohibited this merger after an in-depth phase 2 investigation.
It was the first time since the introduction of the Dutch Competition Act that the Minister used his power to grant a licence for a concentration on the basis of compelling reasons of general interest outweighing the expected restrictive effects on competition that led to a refusal by ACM. Representatives of the government indicated during the court hearing that they would appeal the judgment in case of an annulment. In the meantime, the Minister could also grant a new licence through an improved reasoned decision.
For more information contact Piet-Hein Eijssen.
CMA investigation into excessive pricing of hand sanitiser
The Competition and Markets Authority (CMA) is investigating four pharmacies and convenience stores for suspected breaches of competition law. The investigations, under Chapter II of the Competition Act 1998, relate to suspected charging of excessive and unfair prices for hand sanitiser products to consumers during the COVID-19 pandemic.
For more information contact Peter Willis.
Speaking engagements & Events
Competition partners Peter Willis and Hein Hobbelen will speak at the 22nd Annual EU Competition law summer school organized by Informa. The event, which gathers professionals with extensive knowledge and experience in the field, will be held virtually from 3 to 7 August 2020 (due to COVID-19).
Join us for a free webinar hosted by Lexology
Competition law and product regulations: avoiding pitfalls when joining forces in the food and beverage sector
Register now and join Morten Nissen, co-head of our global Competition and EU practice and Nicolas Carbonnelle, head of our Food & Beverage sector group, for an informative webinar covering topics such as platforms, digitalisation, cooperation when introducing new products, exchange of data and the impact of COVID-19. The speakers will illustrate their points with examples to help guide you in your potential collaboration with competitors.
The webinar will take place on September 16th. Read a full description here.
Register here >