Cleary Gottlieb

Contact:Read more about Cleary Gottlieb

On November 8, 2022, the Court of Justice set aside the General Court’s judgment in the Fiat State aid case.[1] In doing so, the Court of Justice effectively annulled the Commission decision which found that the tax ruling granted to the Fiat Chrysler group by the tax authorities of Luxembourg was an unlawful tax break of €20–30 million.[2] The Court of Justice affirmed the supremacy of national law in corporate taxation and rejected the Commission’s attempt to develop an EU-wide arm’s length principle as a standard of review for Member States’ tax decisions under State aid rules. The judgment is a setback for the Commission’s policy of using State aid rules to target allegedly unfair tax deals for multinational companies.

On December 6, 2022, the French Competition Authority (“FCA”) issued a decision rejecting TDF’s request to lift the commitments it had entered into in 2015 regarding abuse of dominance practices on the market for hosting mobile network antennas on pylon sites (the “Decision”).[1] The FCA rejected this request due to lack of evidence that the competition concerns identified in 2015 have disappeared.

On October 27, 2022, the Digital Services Act (“DSA”) was published in the Official Journal of the EU, marking its formal adoption.[1] The DSA sets out new rules that apply to the distribution of user-generated online content. Unlike the DMA, which seeks to ensure the contestability of digital markets, the DSA seeks to improve user safety online and ensure accountability of platforms for the content that they transmit, host or publicly disseminate.

On October 25, 2022, the Commission published additional guidance on its Leniency Policy in the form of Frequently Asked Questions (“FAQs”) to further encourage companies to seek immunity or leniency from cartel fines.[1]

On October 24, 2022, the Council of State[1] confirmed on appeal the annulment of a 2020 decision, by which the ICA had imposed a fine on CTS Eventim-TicketOne Group (“TicketOne”) for allegedly abusing its dominant position in the Italian market for the provision of ticketing services for pop music concerts.[2]

On October 20, 2022, for the first time, the French Competition Authority used its newly-acquired ability to reject a claim on the basis of enforcement priority and rejected Culture Presse’s claim in relation to an alleged abuse of a dominant position by La Poste in respect of postal stamps distribution.[1] Since the transposition into French law of the ECN+ Directive[2] and pursuant to the second paragraph of Article L. 462-8 of the French Commercial Code, the Competition Authority no longer has an obligation to investigate, and may now, by way of a reasoned decision, reject a complaint where it is not considered an enforcement priority.

On October 20, 2022, Advocate General Kokott issued her opinion on the Commission’s appeal of the General Court’s landmark May 2020 judgment overturning the Commission’s prohibition of the Three/O2 UK mobile telecommunications merger.[1] The Opinion advises the Court of Justice to uphold the Commission’s appeal on all main grounds and refer the case back to the General Court for reconsideration.

On October 19, 2022, the Cour de cassation dismissed[1] an appeal brought by Carrefour against two decisions of the Paris Court of Appeals, which rejected its follow-on damage claim against Johnson & Johnson Santé Beauté France (“Johnson & Johnson”) in relation to its participation to the home and personal care cartel.[2]