Competitive Edge: Competition & EU law news - November 2020
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Keeping you up to date on Competition & EU Law developments in Europe and beyond
In this issue we focus on the state of play in the battle between European industrial policy versus competition law 18 months after the landmark European Commission decision to block the proposed Siemens-Alstom merger. Furthermore, we provide you with an overview of the recent key competition law developments across Europe and beyond with brief updates from our international network.
New eLearning programme on Dawn Raid investigations
We are pleased to announce the launch of our Dawn Raid investigations eLearning programme, which prepares your employees to adequately respond in the event of a surprise investigation by competition or regulatory authorities ('dawn raid').
The course is made up of seven short, interactive modules of 5-10 minutes each, which can be assigned to employees based on their role in the dawn raid.
Watch a 1-minute introduction video.
Click here to watch a demo of the Dawn Raid investigations eLearning course.
Find out more about our eLearning courses here.
In Focus
European industrial policy vs. European competition law: state of play 18 months after the Siemens-Alstom decision
The European Commission's decision to block the Siemens-Alstom mega-merger in February 2019 provoked the anger of the French and German governments that had backed the deal. They accused the Commission of playing against the interests of the European economy by preventing the emergence of a European champion capable of competing with major foreign rivals in the global economy, particularly state-subsidised Chinese companies. Critics of the decision argued that Europe's economic sovereignty was at stake.
Eighteen months after this decision and an intense political battle, have the advocates of a more industry-oriented competition law been heard and will EU competition policy be radically overhauled?
Bird & Bird news
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Victory in landmark Musaat damages case
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Our Trade team secures definitive anti-dumping measures for the European Thermal Paper Association
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Promotions - Competition & EU Group
Updates from our jurisdictions
EU
A competitive approach to achieving Green Deal goals
Australia
ACCC confirms plans to address Australia's merger laws in 2021
China
Chinese Anti-Monopoly Commission releases Compliance Guidance for Business Operators
Czech Republic
Supreme Administrative Court decides on clearly disproportionate fines for unauthorized acquisition
Denmark
The Nordic competition authorities in Denmark, Finland, Iceland, Norway and Sweden release a joint memorandum on digital platforms and the future of European policy on issues of competition in digital markets
Finland
The Finnish Competition and Consumer Authority proposes prohibition of a three-to-two merger in the healthcare sector
France
The FCA rejects Sony’s commitments in an abuse of dominance case
Germany
Quantification of cartel damages – first German Court recourses to freehand estimation
Hungary
GVH launches sector inquiry regarding supply of beverages in the HoReCa sector
Poland
UOKiK imposes record fines on companies involved in developing Nord Stream 2
Slovakia
The Slovak Antimonopoly Office in 2019 and its plan for 2020
Spain
The CNMC investigates a potential abuse of dominant position in the Spanish natural gas market
The Netherlands
Cigarette manufacturers fined € 82 million for Hub-and-Spoke cartel in the Netherlands
UK
The functions of the CMA post Brexit
EU
A competitive approach to achieving Green Deal goals
The European Commission has made the Green Deal one of the key policy goals of this term. Competition policy will also have its role to play. In this article we will shed some light on how the Directorate-General for Competition is approaching the task of greening competition law.
For more information contact Francine Cunningham.
Australia
ACCC confirms plans to address Australia's merger laws in 2021
In a recent speech provided to the Law Council of Australia Business Law Section’s Competition and Consumer Workshop, the Chairman of the Australian Competition and Consumer Commission (ACCC), Rod Sims, confirmed that the ACCC will be putting forward ideas for changes to Australia's merger laws in 2021.
Although it is unclear what precise form these changes will take, it is likely that they will be based on the ACCC’s recommendation from its final report in the ACCC’s landmark Digital Platforms Inquiry, in which it recommended certain amendments to section 50(3) of the Competition and Consumer Act 2010 (Cth).
For more information contact Thomas Jones.
China
Chinese Anti-Monopoly Commission releases Compliance Guidance for Business Operators
On September 11, 2020, the Anti-Monopoly Commission of the State Council promulgated the Anti-Monopoly Compliance Guidance for Business Operators (“Guidance”), which came into force as of the date of promulgation.
This update was provided by our partner Allbright Law Offices China.
Czech Republic
Supreme Administrative Court decides on clearly disproportionate fines for unauthorized acquisition
In a recent decision concerning the case of an unauthorized acquisition, the Supreme Administrative Court concluded that fines which are not clearly disproportionate cannot be reduced by the Regional Courts, and must be determined in view of the gravity of the conduct involved, as well as the competitor’s overall economic strength and its presence on the relevant market.
For more information contact Vojtech Chloupek.
Denmark
The Nordic competition authorities in Denmark, Finland, Iceland, Norway and Sweden release a joint memorandum on digital platforms and the future of European policy on issues of competition in digital markets
In order to contribute to the ongoing policy discussion on the challenges following the rise of digital technologies, the Nordic competition authorities have published a memorandum entitled “Digital platforms and the potential changes to competition law at the European level”.
The Nordic competition authorities have responded to these challenges by committing to robust enforcement of competition rules that keeps pace with technological developments.
The memorandum explores several challenges created by digital platforms and publishes a set of recommendations in order for European competition policy to adapt to the developments and challenges in this fast-paced competitive environment.
Please refer to the memorandum here and an English overview from the Danish Competition and Consumer Authority here.
For more information contact Morten Nissen.
Finland
The Finnish Competition and Consumer Authority proposes prohibition of a three-to-two merger in the healthcare sector
On 29 September 2020, the Finnish Competition and Consumer Authority ("FCCA") proposed the Market Court to prohibit the merger between two national healthcare market players, Mehiläinen and Pihlajalinna. If not prohibited, the transaction would leave only two major players on the market, Mehiläinen and Terveystalo.
This is the fifth merger in the history of Finnish merger control that the FCCA has proposed to prohibit, and the second one within one year. According to the FCCA, the scale and the gravity of the identified competition concerns could not be addressed with remedies.
For more information contact Päivi Tammilehto.
France
The FCA rejects Sony’s commitments in an abuse of dominance case
2020 proves to be a busy year for the French Competition Authority ("FCA") as far as tech giants are concerned. After Google and Apple, it's now Sony's turn to be under the FCA’s spotlight. While the Japanese company is currently launching pre-orders for its new PlayStation 5, the FCA has just announced that despite several commitments submitted by Sony in November 2019, the FCA’s investigation services will continue investigating a 2016 abuse of dominance case involving Sony's licensing program for third-party PlayStation 4 controllers. The FCA’s board considered that Sony failed to adequately address the competition concerns initially identified by the FCA’s investigation services.
For more information contact Florence Leroux.
Germany
Quantification of cartel damages – first German Court recourses to freehand estimation
The central purpose of the European Union is to establish an internal market that ensures undistorted competition. Market fragmentation remains a major hurdle to the achievement of such a purpose. In this context “geo-blocking” – the discriminatory practice that prevents online customers from accessing and purchasing products or services from a website based in another member state – has been a particular concern for the European Commission. To address this concern, it adopted the Geo-Blocking Regulation which prohibits unjustified geo-blocking within the internal market.
The Italian Competition Authority ("ICA") has been designated as the authority responsible for the enforcement of the Geo-blocking Regulation in Italy. In carrying out this new duty, the ICA can make use of its competence and power in the field of consumer protection against unfair commercial practices.
This assignment provides an additional enforcement tool that can be combined with antitrust enforcement action, increasing the level of consumer protection with regards to geographic restrictions/discriminations. It also grants the authority the power to carefully review current company practices to ensure compliance with both sets of rules.
For more information contact Marcio da Silva Lima.
Hungary
GVH launches sector inquiry regarding supply of beverages in the HoReCa sector
The Hungarian Competition Authority (GVH) launched a sector inquiry in October 2020 in order to investigate the supply of beverages in the HoReCa sector (hotels, restaurants and cafés). The GVH suspects that Hungarian HoReCa outlets are reluctant to establish new supply relationships because of exclusivity arrangements with suppliers of beverages, and that this trend has resulted in restricted and narrower supply and higher prices for consumers. An interesting development in light of the recent statutory ban on exclusive beverages supply contracts with HoReCa outlets and the GVH’s acceptance of commitments in 2015 from the three large breweries to decrease HoReCa tied-up volumes in 2016 and 2017.
For more information contact Dániel Aranyi.
Poland
UOKiK imposes record fines on companies involved in developing Nord Stream 2
The President of the Polish Office of Competition and Consumer Protection ("UOKiK") has imposed the biggest fine for gun-jumping ever by a national competition authority. The UOKiK imposed a fine of over PLN 29 billion (approx. EUR 6.5 billion) on Gazprom, and a total of over PLN 294 million (approx. EUR 65.4 million) on Engie, Uniper, OMV, Shell, and Wintershall. The UOKiK also ordered the companies to terminate the agreements concluded for financing the Nord Stream 2 gas pipeline in order to restore the market conditions that existed before the alleged concentration.
This decision is the result of the UOKiK’s long history of dealing with the companies involved in developing Nord Stream 2.
Slovakia
The Slovak Antimonopoly Office in 2019 and its plan for 2020
The Antimonopoly Office of the Slovak Republic (hereinafter referred to as the “Office”) has published its annual report on its website, in which it has evaluated and summarized its activities in the past year. In 2019, the Office imposed fines of over EUR 3.3 million, approximately one third lower than the amount of sanctions imposed in 2018 (EUR 10.6 million).
For more information contact Radovan Repa.
Spain
The CNMC investigates a potential abuse of dominant position in the Spanish natural gas market
Same as in many other countries, the gas sector is crucial in Spain given its strategic importance and its necessary use for many industrial and consumer applications.
The Spanish Competition Authority ("CNMC") has expressed the view that this sector is characterized by high levels of concentration and vertical integration, which may facilitate restrictive behaviors by the main actors active in it. In fact, the CNMC has recently announced that it is conducting an investigation for alleged abuse of dominant position through a market foreclosure strategy involving third-party competitors.
For more information contact Patricia Liñán.
The Netherlands
Cigarette manufacturers fined € 82 million for Hub-and-Spoke cartel in the Netherlands
On 27 May 2020, the Dutch Authority for Consumers and Markets ("ACM") imposed a fine of € 82 million on four cigarette manufacturers for indirect information exchanges in violation of Article 101 Treaty on the Functioning of the European Union (and its Dutch equivalent). It is the first fine ACM has given for indirect information exchanges between competitors.
The manufacturers exchanged price information, through wholesalers among other channels, and used so called ‘trial balloons’ over a three-year period (2008-2011). Such a practice is also known as a Hub-and-Spoke cartel and is forbidden.
The decision is noteworthy for three reasons:
1. It is one of the few cases in which both a Hub-and-Spoke cartel and trial balloons occur;
2. It clarifies the interplay between sector-specific regulation and competition law; and
3. It provides guidance as to when information qualifies as public information.
For more information contact Piet-Hein Eijssen.
UK
The functions of the CMA post Brexit
For decades the Competition and Markets Authority ("CMA") and its predecessor, the Office of Fair Trading ("OFT"), have worked in symbiosis with the European Commission ("Commission") on competition law enforcement and merger investigations. Following the UK’s decision to leave the EU and at the end of the Brexit transition period (set for 31 December 2020) this will change. This article explores the changing relationship between the two competition authorities in relation to Merger Control and antitrust investigations following the publication of Draft Guidance from the CMA.
For more information please contact Peter Willis.
Speaking engagements & Webinars & Events
Dawn Raid Webinar series
A Cure for Nightmares
It's at or near the top of every GC's and CEO's list of things that prevent a good night's sleep – the prospect of an early morning visit from a team of officials from an EU or national regulator, looking for evidence of a breach of one set of rules or another, armed with a court order and bristling with technology to carry out a search of the IT systems, as well as individual employees' laptops and mobiles.
Join one or both webinars, in which our team of international experts, with extensive experience of investigations in the fields of competition, financial services and data protection, will be sharing their top tips on avoiding the nightmares.
Webinar 1: Dealing with the regulators
Watch the recording. Download the presentation slides.
Webinar 2: Managing employees and data during an investigation
18 November 2020
12:00 - 13:00 GMT
RSVP here
For any enquiries please click here.
On 2 December our Brussels partner Jose Rivas will speak about Connectivity: Access to and Sharing of Data at the Competition Law in Transport Conference organised by InformaConnect in Brussels. You can join the conference in person or online.
Click here to register with a 30% discount.
Bird & Bird news
Bird & Bird secures landmark victory in Musaat damages case
An international team led by IP partner Antonio Cueto (Madrid) and supported by competition partner Jose Rivas (Brussels) secured a landmark victory in the groundbreaking Musaat case, the first antitrust case in Spain where the EU Commission intervened as amicus curiae.
This case represents the largest award of antitrust damages to a victim in Spain, and further strengthens Bird & Bird’s damages litigation profile.
Bird & Bird Trade team secures definitive anti-dumping measures for the European Thermal Paper Association
On 20 October, the European Commission imposed definitive anti-dumping duties on imports of heavyweight thermal paper (HWTP) from South Korea.
The decision follows a complaint filed by our client the European Thermal Paper Association (ETPA), whom the firm represented along with its members from Germany, Finland and Spain.
Competition and trade partner Hein Hobbelen led the efforts with many colleagues contributing, including our Senior Public Affairs Manager Francine Cunningham, who contributed valuable public affairs advice.
Strengthening our international Competition & EU team
Congratulations to Stephan Waldheim (Dusseldorf) and Dániel Aranyi (Budapest) on their recent promotions!
