On April 11, 2022,[1] the TAR Lazio annulled an ICA decision finding that Telecom Italia S.p.A. (“Tim”) had infringed Article 102 TFEU for allegedly abusing its dominant position in the market for Short Message Service (“SMS”) termination (the “Decision”).[2] The Court followed the same reasoning as that set out in its September 2021 judgment, in which it overturned the €5.7 million fine imposed by the ICA on Vodafone Italia S.p.A. (“Vodafone”) in a parallel decision.
Cleary Gottlieb lawyers have authored and edited Lexology’s Getting the Deal Through Dominance guide 2022, which addresses the most relevant questions on dominance and market power.
On April 7, 2022, Advocate General Szpunar delivered his opinion on the interpretation of Article 5(1) of Directive 2014/104 (the “Damages Directive”) and on the scope of its rules on evidence production.[1] The Advocate General called on the Court of Justice to allow national courts to require defendants to disclose evidence of a type that would require the defendant to compile or classify information rather than merely produce existing material.
The Commission has recently revealed its plan to review two foundations of EU competition law enforcement: Regulation 1/2003 and the Leniency Policy.
On March 30, 2022, after a decade of litigation in over a dozen separate cases, the General Court partially annulled the Commission’s March 17, 2017 decision imposing a €776 million fine on air carriers for coordinated practices and agreements relating to air freight transport between 1999 and 2006.[1] The General Court upheld the Commission’s decision although, in six of 13 appeals lodged against the decision,[2] the Court found that the Commission had infringed procedural rights and/or failed to establish the participation of certain air carriers in certain parts of the infringement. The General Court reduced the corresponding fines and dismissed the remaining seven appeals in their entirety.
The Italian Competition Authority (the “ICA”) fined ferry operator Caronte & Tourist (“C&T”) €3.7 million for charging allegedly excessive prices on a ferry transportation route between Sicily and Calabria between 2017 and 2019 (the “Decision”).[1]
On March 25, 2022, the French Conseil constitutionnel[1] held that the provisions of Article L.470-2, paragraph VII of the French Commercial Code, which provide for the cumulative enforcement of penalties imposed on the same person for multiple breaches regarding restrictive trade practices, are in compliance with the French Constitution.
On March 24, 2022, the European Parliament, the Commission and the EU Member States reached an agreement on the text of the Digital Markets Act (“DMA”). And on April 23, 2022, the same set of EU bodies reached political agreement on the final text of the Digital Services Act (“DSA”). The new legislations will now make their way through the final procedural hurdles over the summer.
On March 15, 2022, the ICA imposed fines of over €90 million on the associations of undertakings Anica, Anec and Anec Lazio, representing the Italian film and audiovisual industry as well as companies managing cinemas in Italy (jointly the “Associations”), for an alleged collective boycott infringing Article 101 TFEU.[1]
In a ruling dated March 9, 2022, the Paris Court of Appeals partially quashed a 2019 judgment in which the Paris Commercial Court had held that Schneider Electric France was in a dominant position in certain markets for the supply of spare parts.