The May/June 2020 issue of Ashurst's competition law newsletter features the European Commission's proposal to introduce a new competition tool, the landmark German Facebook judgment on competition law and data protection, new merger control rules in the UK, bid rigging in Singapore, interchange fees held as anticompetitive by the UK Supreme Court, the UK's first RPM fine imposed on a retailer, as well as other laws.
Contents
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competition law newsletter | EU
Jun 2020 Power cables saga continues: ECJ annuls parts of NKT decision
On 14 May 2020, the European Court of Justice (the "ECJ") partially quashed the General Court's (the "GC") judgment upholding the European Commission's ("Commission") power cables cartel decision with respect to NKT and its wholly owned subsidiary NKT Verwaltungs (together "NKT" or the "appellants"). I doing so, the ECJ reduced NKT's fine by EUR 200 000.
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competition law newsletter | eu
Jun 2020 New Competition Tool and ex ante regulation of digital platforms - EU to widen its regulatory net
On 2 June 2020, the European Commission ("Commission") launched a public consultation seeking views on a proposal to develop a "new competition tool" ("NCT") to address "structural competition problems" and on the EU Digital Services Act package (a collection of proposed initiatives regarding the digital sector). The proposed NCT would allow the Commission to launch detailed market investigations and to impose behavioural and/or structural remedies if it finds a structural competition problem, similar to the UK market investigations regime, while the Digital Services Act package includes a proposal for ex ante regulation of digital platforms.
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competition law newsletter | eu
Jun 2020 EU Commission proposals to regulate foreign subsidies
On 17 June 2020, the European Commission ("Commission") published a White Paper on "levelling the playing field as regards foreign subsidies". The White Paper sets out the Commission's initial proposals aimed at reducing distortions to the EU internal market as a result of subsidies from non-EU governments.
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competition law newsletter | france
Jun 2020 French public consultation on Fintechs
On 20 May 2020, the French Competition Authority ("FCA") launched a public consultation intended to better understand the competitive impact of the development of new technologies in the financial sector, especially with regard to payment services.
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competition law newsletter | france
Jun 2020 First French fine for obstructing raid confirmed
On 26 May 2020, the Paris Court of appeal ("Court") confirmed the fine imposed by the French Competition Authority ("FCA") on an undertaking for having obstructed a competition investigation.
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competition law newsletter | germany
Jun 2020 Round 3 to FCO: Landmark German Facebook data collection ban reinstated
On 23 June 2020, the German Federal Court of Justice ("Federal Court") handed down a decision in preliminary proceedings in favour of the German Federal Cartel Office ("FCO") which, in 2019, objected to the business model of Facebook. Specifically, the Federal Court upheld the FCO's assessment that Facebook's processing of user data amounted to an abuse of its dominant position in the German social networking market.
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competition law newsletter | germany
Jun 2020 German banking industry attempts to stifle FinTech rivals thwarted
In April 2020, the German Federal Court of Justice ("Court") confirmed that certain market participants in the financial sector violated competition law by jointly agreeing on provisions restricting the use of their customers' PIN and TAN codes for purposes of arranging payments via third-party payment operators (case no. KVR 13/19).
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competition law newsletter | hong kong
Jun 2020 Competition Tribunal adopts four-step approach to penalties
On 29 April 2020, The Hong Kong Competition Tribunal ("Tribunal") has handed down its first judgment concerning pecuniary penalties, which provides guidance on how fines are to be calculated for breaches of the Competition Ordinance (Cap 619) ("Ordinance").
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competition law newsletter | italy
Jun 2020 First Italian approval decisions under temporary COVID-19 cooperation rules
On 27 May 2020, the Italian Competition Authority ("ICA") approved a joint purchasing agreement of surgical masks via pharmacies/drugstores and a moratorium scheme on loan repayments agreed within ASSOFIN (the Italian Association of Consumer Credit and Mortgage Lending) pursuant to its temporary rules on cooperation among companies during the COVID-19 outbreak.
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competition law newsletter | italy
Jun 2020 Legitimacy of ex-post remedies in Sky Italia and R2 (MP) merger reconfirmed
On 28 May 2020, the Italian Administrative Supreme Court ("CoS") reinstated remedies imposed by the Italian Competition Authority ("ICA" or "Authority") to mitigate the effects of the acquisition by Sky Italia Holding S.p.A. ("Sky") of certain assets of the digital terrestrial Pay-TV owned by Mediaset Premium S.p.A. ("MP"). The ICA decision had been quashed by the Regional Administrative Tribunal of Lazio.
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competition law newsletter | singapore
Jun 2020 Fines for Singapore Zoo and Bird Park building and maintenance bid rigging
The Competition & Consumer Commission of Singapore ("CCCS") has imposed fines totalling SGD 32,098 for the rigging of bids for the building and maintenance of the Singapore Zoo and Bird Park among other iconic Singapore park attractions. The CCCS concluded that three construction companies had exchanged sensitive bid information and co-ordinated responses to eight invitations to tender by the Wildlife Reserves Singapore ("WRS") during the period 1 July 2015 to 6 October 2016. The CCCS held that the conduct distorted competition as the parties agreed on bid prices which prevented WRS from obtaining best prices through independent competitive bids.
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competition law newsletter | spain
Jun 2020 Spanish cartel diverging damages claims developments
Spanish Courts continue to have diverging approaches to damages in cartel cases, in particular towards the damages arising from the Trucks Cartel. Such differences have been mitigated by appeal courts in Barcelona, Valencia and Galicia. Recently, these disparities amongst lower courts have been also displayed in damages claims arising from the car dealers cartel sanctioned by the Spanish Competition Authority ("CNMC") in 2015.
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competition law newsletter | UK
Jun 2020 Shoppers would be "worse off" - CMA prohibits JD Sports/ Footasylum merger at Phase II
On 6 May 2020, the CMA prohibited the merger of JD Sports and Footasylum, after finding that shoppers of sports-inspired clothing and footwear would be "worse off" as a result of the merger. The CMA has concluded that in order to remedy competition concerns, JD Sports must sell Footasylum in its entirety, but it will allow an extended timeframe to do so in light of the current COVID-19 pandemic.
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competition law newsletter | UK
Jun 2020 Court of Appeal judgment on costs in Pfizer/Flynn excessive pricing case
On 12 May 2020, the Court of Appeal ("CA") gave its judgment on an appeal against the ruling of the Competition Appeal Tribunal ("CAT") on costs relating to the appeals by Pfizer and Flynn against the 2016 CMA decision which fined Pfizer and Flynn for abusing their dominant positions by charging unfair and excessive prices for phenytoin sodium capsules. The CA held that, even though the CMA had been unsuccessful on the main issues in the appeal, no order for costs should be made against the CMA which had been acting in its capacity as a regulatory body.
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competition law newsletter | UK
Jun 2020 Continued rise of UK consumer law: Fake online reviews and COVID-19 pricing and cancelations
On 22 May 2020, the CMA launched a consumer enforcement investigation into several major websites that display online reviews, to see if they are taking sufficient action to protect shoppers from fake and misleading reviews. The CMA also announced that it had secured commitments from Instagram to tackle the trading of fake and misleading reviews on its platform. The CMA is separately continuing a wide-ranging programme work looking at consumer protection issues arising from the COVID-19 pandemic, focussing in particular on cancellations and refunds and pricing practices.
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competition law newsletter | uk
Jun 2020 CMA accepts unusual behavioural undertakings in relation to Bauer Media radio acquisitions
On the 1 June 2020, following a detailed Phase 2 investigation, the Competition and Markets Authority ("CMA") published a notice of acceptance of final undertakings in relation to the completed acquisitions by Bauer Media Group ("Bauer") of four different radio businesses from Celador Entertainment, Lincs FM Group, Wireless Group, and UKRD Group.
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competition law newsletter | uk
Jun 2020 UK Supreme Court: Interchange fees restricted competition
On 17 June 2020, the UK Supreme Court handed down a unanimous judgment in Sainsbury's [2020] UKSC 24 relating to the default multi-lateral interchange fees ("MIFs") set by Visa and Mastercard. The Supreme Court upheld the Court of Appeal's determination that the MIFs had the effect of restricting competition under Article 101(1) of Treaty on the Functioning of the European Union ("TFEU") and handed down important guidance on the application of Article 101(3) TFEU and the pass-on 'defence'.
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competition law newsletter | uk
Jun 2020 Online RPM strikes again - further fines for online restrictions
On 29 June 2020, the UK Competition and Markets Authority ("CMA") announced that it had fined two musical instrument makers a total of GBP 5.5 million, in two separate cases, for restricting online discounting of musical instruments. On the same day, it also announced that it had, for the first time, taken enforcement action against a retailer in a resale price maintenance ("RPM") case.
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competition law newsletter | uk
Jun 2020 UK merger control expanded: public health intervention and technology mergers
With effect from 23 June 2020, the UK Government can intervene in UK merger control assessments in order to maintain the UK's capability to combat, and mitigate the effects of, public health emergencies. In simple terms, this means that the UK Government can now block a deal or (more likely) impose remedies if it has concerns that an acquisition of a relevant UK entity may make it more difficult to combat public health emergencies, such as the current COVID-19 pandemic.
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