Competitive Edge: Competition & EU law news - June 2020
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Keeping you up to date on Competition & EU Law developments in Europe and beyond
In Focus
Internal investigations: what to do when there is a suspicion that an employee is infringing Competition Law
A company can be held liable for anticompetitive behaviors of its employees, irrespectively of whether it authorized such behaviors or not. This exposes the company to high fines, expensive damages claims and significant reputational costs. In this context, the implementation of robust compliance policies and appropriate protocols to avoid anticompetitive behaviors is essential to minimize the economical and reputational risks associated with the infringement of competition rules.
Internal investigations have to be effective and, at the same time, respectful of the employees' rights, particularly those relating to privacy. Finding the balance between the effectiveness of the investigation and the full respect of Labour, Privacy and Data Protection laws might be a challenge, particularly in jurisdictions, such as Spain, that protect the employee.
On 2 June, The European Commission launched a public consultation on its forthcoming Digital Services Act. As part of this consultation, the Commission is gathering input and evidence regarding what it calls the "gatekeeper" power of large online platforms. In parallel, the EU’s executive body is also seeking stakeholder views on a New Competition Tool and requesting feedback on Digital Services Act roadmaps outlining various policy options, including one on ex ante regulatory instruments for very large platforms and one on the Internal Market and clarifying the responsibilities of online platforms.
The consultations are open for responses until 8 September 2020. Views on the roadmaps can be submitted until 30 June 2020.
Bird & Bird news
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Competition Dawn Raid Game and App - now available in Finnish
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Geo-Blocking Regulation - Stumbling Block or Building Block towards the Digital Single Market?
Updates from our jurisdictions
Australia
ACCC releases concept paper for draft news media and digital platforms bargaining code
On 19 May 2020, the Australian Competition and Consumer Commission ("ACCC") released a concept paper seeking views from industry on a range of issues designed to guide the development of its mandatory code addressing the bargaining power imbalances between Australian news media businesses and digital platforms.
For more information contact Thomas Jones.
China
The First Anti-monopoly Case of Active Pharmaceutical Ingredients
In accordance with the PRC Anti-monopoly Law (AML), the State Administration for Market Regulation (SAMR) investigated and issued large fines to both individuals and corporate entities in a major case regarding abusing dominant market position in the field of active pharmaceutical ingredients (API).
This update was provided by our partner Allbright Law Offices China.
Czech Republic
The Czech Office for the Protection of Competition imposed a fine for illegal price fixing agreements
The Czech Office for the Protection of Competition imposed a fine of EUR 70,000 on a company engaged in the wholesale sales of sporting products for illegal price fixing agreements concluded with certain retailers.
For more information contact Vojtech Chloupek.
Denmark
European Commission approves most Danish State aid measures
On 2 June 2020, the European Commission published an overview of the State aid measures approved under Article 107(2)b TFEU, Article 107(3)b and under the Temporary State Aid Framework since the beginning of the Coronavirus outbreak.
In total, Denmark had 12 different State aid measures ranging from a EUR 1,3 billion scheme to compensation of self-employed, a EUR 137 million compensation to airline SAS to a EUR 200 million loan in support of the Travel Guarantee Fund for travel cancellations adopted under 107(2b) TFEU, Article 107(3)b TFEU and the Temporary Framework since the beginning of the outbreak.
For more information contact Morten Nissen.
Finland
Finland considers prolonging the time limits for merger review due to the COVID-19 crisis
The Finnish Competition Act is temporarily amended. The time limits for merger control proceedings are amended so the processing time limit for the phase II is extended by 23 working days. The amendment is due to enter into force on June 20, 2020.
Contrary to the draft proposal of the Ministry of Economic Affairs and Employment, the amendment will not apply retroactively to transactions already notified.
France
The FCA’s contribution to the fight against climate change
At the time where the COVID-19 outbreak has resulted in a significant drop in greenhouse gas emissions, the French Competition Authority ("FCA") recently published a working paper, together with seven other French regulators, which identifies their respective roles and tools to face the climate change emergency.
The FCA’s implication in said initiative supplements its 2020 roadmap which listed environmental and sustainable development issues as one of its priorities for the present year.
For more information contact Florence Leroux.
Germany
Technical building companies fined by FCO
Eleven providers of technical building services, such as design and installation of technical equipment for large building complexes such as shopping centres, office buildings or power plants were fined in total approximately EUR 110 million by the Federal Cartel Office (“FCO”) for anti-competitive conduct. The fine resulted from cartel proceeding initiated by the FCO regarding collusive behaviour related to bids for the award of major building contracts.
For more information contact Jörg Witting.
Hungary
Relentless crackdown on unfair trading practices against consumers in Hungary
In the last eight months, the Hungarian Competition Office (“GVH”) initiated a host of inspections and imposed unprecedented fines on online service operators for misleading consumers. A trend seems to unfold of the GVH shifting its focus to consumer protection cases and relentlessly cracking down on especially foreign-based online platforms and service providers, including Facebook, Telenor, Viber, Booking and Alza.
For more information contact László Zlatarov.
Italy
Unfair pricing of cancer drugs - Italian Supreme Administrative Court confirms the abuse of dominant position by the Aspen Group
The Italian Supreme Administrative Court (“Consiglio di Stato”) rejected the multinational Aspen Group’s (“Aspen”) appeal and confirmed the abuse of a dominant position by practicing unfair pricing in relation to a group of life-saving and irreplaceable cancer drugs. The decision confirmed the conclusions already reached by the Regional Court of Lazio (“TAR”), fully upholding the decision taken by the Italian Competition Authority (“ICA”) on 29 September 2016.
In particular, the Consiglio di Stato: (i) rejected all the procedural claims made by Aspen; (ii) restated a number of consolidated antitrust principles validating the ICA’s market definition; (iii) confirmed ICA’s assessment under Article 102 TFEU about the unfairness of the prices imposed to the Pharma Regulator through an abusive and aggressive strategy; (iv) confirmed the sanction imposed by the ICA endorsing the qualification of Aspen's conduct as "very serious".
For more information contact Federico Marini Balestra.
Poland
Poland adopts restrictions on certain foreign investments
Due to the COVID-19 pandemic and the looming economic crisis, Poland has recently adopted legislation, under which transactions involving certain Polish companies and non-EEA investors would be subject to a new clearance obligation.
This legislation also temporarily adopts the FDI Screening regulation (Regulation (EU) 2019/452) for the period until 11 October 2020.
For more information contact Piotr Dynowski.
Singapore
Singapore Industry Group Investigated for Impeding Innovation and Adoption of Technology
The Competition and Consumer Commission of Singapore ("CCCS") investigated alleged anti-competitive conduct by the Singapore Institute of Surveyors and Valuers (“SISV”). The alleged conduct by SISV included conduct which could have dampened innovation and adoption of technological tools for the provision of property valuation services.
CCCS concluded its investigations taking no further action after SISV addressed the competition concerns by amending its bylaws and taking a position to support the use of technological tools in the performance of property valuations. CCCS noted that with increased competition, firms are incentivised to become more efficient and innovate, including adopting technological tools, to improve the quality, range and value of their offerings benefitting both businesses and consumers.
Slovakia
Slovak Antimonopoly Office imposes fines of EUR 6.7 million on Volkswagen dealers
The Council of Slovak Antimonopoly Office imposed fines in the amount of EUR 6.7 million on 18 Volkswagen distributors in Slovakia.
According to the Slovak Antimonopoly Office, the cartel has lasted for several years, restricting competition on the market for the sale of new Volkswagen passenger and commercial vehicles in Slovakia. In particular, the involved dealers were supposed to had agreed upon the division of the Slovakian territory as well as to maximum discounts which should be offered to customers.
Spain
CNMC identifies competition problems in the fifth stowage sector's framework agreement
Since the European Court of Justice ("ECJ") judgment in 2014 in the case Commission v. Spain, which declared the Spanish regime for stevedores incompatible with the freedom of establishment, there has been a progressive modification of the national regulation in order to liberalise the stevedoring sector and meet the requirements of the ECJ ruling.
The Spanish Competition authority ("CNMC") has now drawn up a report on the fifth stevedoring framework agreement signed in November 2019, remarking the existence of some risks for competition.
The Netherlands
Amsterdam Court of Appeal rules online platform Funda did not abuse its dominant position
On 26 May 2020, the Amsterdam Court of Appeal ruled in a civil litigation case that Funda Real Estate B.V. did not abuse its dominant position by inter alia self-preferencing the ranking of advertisements on the online platform and applying higher tariffs and more limited functionalities of its website to real estate agents that were not a member of the Dutch Association of Real Estate Agents.
The court ruled, however, that claimants insufficiently proved an actual negative effect on competition on the downstream market for estate agencies as a result of the application of unequal terms of use of the online platform. According to the court, merely proving the discriminatory conduct by a dominant market player was not sufficient to establish an abuse.
For more information contact Pauline Kuipers.
UK
CMA announces disqualification undertakings by former director of international pharmaceutical companies
On 4 June 2020, the Competition Markets Authority (“CMA”) announced that it had secured binding competition disqualification undertakings by Mr Amit Patel, not to act as a director of any UK company for five years from 13 July 2020, in consequence of his involvement in two separate anti-competitive arrangements relating to the supply of pharmaceuticals in the UK.
For more information contact Peter Willis.
Bird & Bird News
Competition Dawn Raid Game and App - now available in Finnish
In an effort to make our Competition Law compliance tools more accessible for the Finnish market, we are delighted to announce the launch of the Finnish version of our Dawn Raid Game and Dawn Raid App. These are two separate tools offered free of charge to help in-house lawyers and other company employees know what to do in case of a dawn raid by antitrust authorities.
Game - an engaging way to test your preparedness for a Dawn Raid
Our quirky Dawn Raid Game is an interactive online game that tests your knowledge of what to do in case of a dawn raid. It positions the player as an in-house lawyer who is at work when a dawn raid occurs. Play the game to understand if you know what to do in certain situations during an investigation.
Click to play in Finnish, English, French or Japanese.
App - essential information at your fingertips Before, During and After a dawn raid
The Dawn Raid App provides essential information to in-house lawyers and their colleagues in the event of a dawn raid by antitrust authorities. Using the app, you can quickly find out exactly what to do, what rights you have and what powers the inspecting authorities have in the event of an unexpected investigation.
The app includes a checklist of information for before, during and after a dawn raid and the subsequent investigation, to ensure that the business cooperates fully, whilst minimising disruption and protecting the company's legal position. It also features a list of frequently asked questions and provides a quick access to emergency Bird & Bird contacts.
Download the app in Finnish, English or French from the Apple App Store or Google Play.
Geo-Blocking Regulation – Stumbling Block or Building Block towards the Digital Single Market?
Brona Heenan (Brussels) and Mariska van de Sanden (The Hague) published an article about the Geo-Blocking Regulation in the European Journal of Consumer Law (2020/2, p. 269-290) entitled "Geo-Blocking Regulation – Stumbling Block or Building Block towards the Digital Single Market".
The article goes into the question whether the Regulation brings the EU closer to the Digital Single Market-goal, or not. The article extensively discusses the Regulation itself, the implementation in the Member States and the consequences for consumer rights and cross-border delivery. Furthermore, one chapter is fully devoted to the interplay with competition law, including passive and active sales restrictions, discussing amongst others the Guess-, Nike-, Sanrio-, Pay-tv and Valve-cases.
Read the full publication online here.
Contact the authors by e-mail: Brona Heenan & Mariska van de Sanden.
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