On October 13, 2022, Advocate General Kokott delivered her opinion on a preliminary reference from the Paris Court of Appeal in the Towercast case, stating that transactions that escape EU and national merger control review are susceptible to review under Article 102 TFEU.[1]
On October 11, 2022, the ICA closed an Article 102 TFEU investigation into Mastercard Europe SA (“Mastercard”)’s conduct by accepting the commitments offered by Mastercard relating to its double-tap mandate for contactless payments with co-badged payment cards (i.e., cards that can be used on more than one payment network) (the “Decision”),[1] which precluded retailers operating point-of-sale (“POS”) terminals from accepting single-tap payments from co-badged cards.
On October 10, 2022, the Commission sent a Statement of Objections (“SO”) to Teva, maintaining that the company abused its alleged dominant position through patent misuse and disparagement practices.[1]
In the fourth episode of Cleary Gottlieb’s Antitrust Review podcast, host Nick Levy interviews Professor Eleanor M. Fox, who for
On October 6, 2022, the French Competition Authority (the “FCA”) imposed a €81 million fine on Essilor International SAS (“Essilor”) for having engaged in discriminatory trading practices aimed at hindering the development of e-commerce for optical lenses in France between April 2009 and December 2020.[1] Essilor’s parent company, EssilorLuxottica, was fined €15.4 million jointly and severally with its subsidiary and announced its intention to appeal the decision.[2]
On October 3, 2022, the Commission adopted a Revised Informal Guidance Notice on the application of Articles 101 and 102 TFEU to novel or unresolved competition law questions.[1] The Revised Informal Guidance Notice gives the Commission more flexibility in issuing informal advice compared to the 2004 guidance.[2]
On October 3, 2022, the Regional Administrative Court for Latium (the “TAR Lazio”) annulled the decision of the Italian Competition Authority (the “ICA”) of November 16, 2021 (the “ICA Decision”),[1] by which a fine of €134.5 million was imposed on Apple Inc. and certain of its subsidiaries (“Apple”) and a fine of €68.7 million on Amazon.com Inc. and certain of its subsidiaries (“Amazon”; together with Apple, the “Parties”).[2] The ICA Decision had found that the Parties infringed Article 101(1) (b) and (d) TFEU by restricting competition by certain resellers of Apple products, including those of the Apple-owned brand Beats, which operated on the online marketplace of Amazon (the “Amazon Marketplace”). The ICA found Amazon Marketplace to be a leading online marketplace in Italy, for consumer electronics products.[3]
On September 30, 2022, the Council of State upheld the appeals submitted by Sicuritalia S.p.A., Lomafin Sicuritalia Group Holding S.p.A., Italpol Vigilanza S.r.l. and Mc Holding S.r.l. (the “Appellants”),[1] and annulled a decision of the Italian Competition Authority (“ICA”) on alleged bid-rigging in open tender procedures for the provision of private security services in certain Italian regions.[2]
On April 20, 2022, the German Federal Cartel Office (“FCO”) issued a statement of objections against Deutsche Bahn AG (“DB”) taking the preliminary view that certain practices and contractual clauses of DB in relation to mobility platforms constitute an abuse of market power.
On September 20, 2022, Advocate General Rantos delivered his opinion on the Higher Regional Court of Düsseldorf (the “Düsseldorf Court”)’s request for a preliminary ruling concerning the decision of the Bundeskartellamt (German Federal Cartel Office, “FCO”) which had found that Meta Platforms (“Meta”, formerly Facebook Inc.) abused its dominant position in relation to the collection, processing, aggregation and use of personal data of its users in 2019.[1] The Advocate General concluded that a competition authority may examine, as an incidental question, the compliance of the practices under investigation with the General Data Protection Regulation (“GDPR”) rules, while informing and, where appropriate, consulting the competent supervisory authority on the basis of the GDPR.[2]