As part of our response to the European Commission’s consultation on possible reforms to its merger control guidelines,[1] we provided our views on Topic C – Innovation And Other Dynamic Elements In Merger Control.
EDP – Energias de Portugal and Others (Case C-331/21): Court of Justice Clarifies the Treatment of Non-compete Clauses Between Potential Competitors Under Article 101 TFEU
On October 26, 2023, the European Court of Justice issued a preliminary ruling in EDP – Energias de Portugal and Others,[1] upon request from the Lisbon Court of Appeals, which had asked for clarification on how to assess non-compete clauses under Article 101(1) and (3) TFEU and whether these could constitute “by object” restrictions. The Court of Justice clarified the standard of assessment of such non-compete clauses, confirming that they can be categorized as restrictions by object if they display a sufficient degree of harm to competition.
Clariant v. Commission (Case T-590/20): The General Court endorses a systematic increase of the basic amount of the fine for purchasing cartels and assimilates these types of cartels to sales cartels for the purpose of analyzing recidivism, but does not punish Clariant for appealing a settlement decision
On October 18, 2023, the General Court delivered its judgment in Clariant v. Commission.[1] It upheld the Commission’s settlement decision in the Ethylene case,[2] following an appeal by Clariant, who argued that the Commission erred in: (i) applying a 50% recidivism multiplier to Clariant in circumstances where the previous infringement in which it had participated was not a purchasing cartel, but rather a sales cartel; and (ii) applying a 10% fine increase (to all participants) on account of the infringement being a purchasing cartel, to ensure adequate deterrence. The General Court also rejected a counterclaim lodged by the Commission, in which the Commission sought to increase the fine imposed on Clariant by removing its 10% settlement discount, on the basis that Clariant had accepted to be fined in the context of settlement proceedings.