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On December 9, 2022, the Commission launched a public consultation on its draft Implementing Regulation for the Digital Markets Act (“DMA”).[1] The draft DMA Implementing Regulation, with its two annexes, governs the notification process for gatekeepers, the submission to and assessment of information by the Commission, and access to file. The consultation ran until January 9, 2023 and 27 stakeholders submitted their observations. The Commission will now review the feedback it received and plans on adopting the DMA Implementing Regulation in the first quarter of 2023.

On December 8, 2022, the Court of Justice delivered its judgment in the Orde van Vlaamse Balies and Others v. Vlaamse Regering case[1] following a request for a preliminary ruling from the Belgian Constitutional Court on the validity of a Flemish decree designed to implement an EU directive discouraging aggressive tax planning arrangements. The judgment is noteworthy for broadening the scope of the legal professional privilege applicable in competition law cases.

In the third episode of a three-part series on U.S. antitrust enforcement, host Nick Levy interviews Cleary Gottlieb colleagues Bruce Hoffman and Leah Brannon about the U.S. enforcement environment for Big Tech, the agencies’ application of Section 2 of the Sherman Act, and the prospects for legislative change.

On November 30, 2022, the Italian Competition Authority (the “ICA”) closed the proceedings initiated on December 1, 2020 against Bancomat S.p.A. (“Bancomat”). Bancomat is an Italian company that operates the Bancomat and PagoBancomat circuits, which can be used to make withdrawals at Automated Teller Machines (“ATMs”) as well as cashless payments through so-called Points of Sale. In its decision, the ICA found that Bancomat’s proposed new remuneration model for circular withdrawal (the “Proposal”), brought to attention of the ICA by Bancomat itself on October 22, 2022, infringed Article 101 of the Treaty on the Functioning of the European Union (the “TFEU”).[1]

In the second episode of a three-part series on U.S. antitrust enforcement, host Nick Levy interviews Cleary Gottlieb colleagues Dave Gelfand and Heather Nyongo’o about U.S. antitrust and merger litigation, the prospects for legislative change in the U.S., and their practical experiences of handling major litigation at the Department of Justice’s Antitrust Division and in private practice.

In a judgment delivered on November 18, 2022 (the “Judgment”),[1] the Council of State partially upheld an appeal against a judgment of the Regional Administrative Tribunal of Lazio (the “TAR Lazio”) that had confirmed an ICA decision imposing a €2,817,890 fine on a company (MS) for an anticompetitive agreement in the corrugated cardboard packaging market (the “Decision”).[2] The Judgment is the first to be delivered in as many as 25 parallel appeals against the Decision.

On November 15, 2022, the French Competition Authority (“FCA”) imposed a fine of 800,000 euros on Audiens Santé-Prévoyance (“Audiens SP”) for abuse of dominance through its subsidiary, Movinmotion, on the market for payroll management services for entertainment workers (the “Decision”).[1]

On November 10, 2022, in a judgment on a request for a preliminary ruling on the interpretation of Article 5(1) of Directive 2014/104 (the “Damages Directive”) and the scope of its rules on evidence production, the Court of Justice confirmed that national courts could require defendants to disclose evidence that did not exist at the time of the court proceedings (“ex novo evidence”)— by compiling or classifying knowledge, information or data in their possession— rather than to merely produce documents that already exist.[1] In this instance, the applicants were seeking price data to quantify the artificial price increase caused by a cartel. The Court of Justice considered that the need to ensure the effective implementation of EU competition law could justify this interpretation, provided that national courts limited disclosure of ex novo evidence to necessary and proportionate requests. This ruling will increase the burden of follow-on litigation on companies and, in particular, the time and costs of carrying out disclosure.

On November 8, 2022, the Commission published its draft Revised Market Definition Notice (the “Revised Notice”) for consultation in view of a formal adoption in the third quarter of 2023.[1] The revision of the current 1997 Market Definition Notice (the “Original Notice”) was initiated in April 2020, with a particular focus on improved analysis of global and digital markets.[2] In addition to guidance on these issues, the Revised Notice largely confirms the principles set in the Original Notice, integrates as additional background recent EU decisional practice and preserves the Commission’s margin of discretion in market definition assessments.