Kristi Georgieva

Contact:Read more about Kristi Georgieva

Since the obligations under the Digital Markets Act (“DMA”) started to apply to the first wave of gatekeepers in March 2024, there have been a number of important developments on the implementation and enforcement of the DMA by the Commission.[1]  In particular, the Commission has: (i) adopted a second wave of designation decisions concerning Apple and Booking Holdings Inc. (“BHI”), while exempting other services of Apple, ByteDance, X Holdings Corp., and Microsoft; (ii) defended appeals before the European courts concerning a number of its designation and non-designation decisions; (iii) launched whistleblower tools for the DMA and the Digital Services Act (“DSA”); and (iv) opened non-compliance investigations against Meta, Alphabet, and Apple as well as specification proceedings into Apple’s compliance with DMA interoperability obligations.  

On October 4, 2024, following two annulments,[1] the Court of Justice confirmed the Commission’s second readoption of its decision to fine Italian manufacturers of reinforcing steel bars for a price-fixing cartel.  While dismissing all other pleas, the Court of Justice found that the Commission had breached the principle of equal treatment by granting two manufacturers different fine discounts per year of their non-participation in the cartel.[2]  To rectify the unequal treatment, the Court of Justice reduced Ferriere Nord’s fine from €2,237,000 to €2,165,000.

On October 4, 2024, the Court of Justice delivered its preliminary ruling in a case involving Federation Internationale de Football Association (“FIFA”) and a former professional football player.[1]  The Court of Justice found that certain provisions within FIFA’s transfer rules, specifically those related to the termination of player contracts, had the same effect as no-poach agreements and, therefore, constituted “by-object” infringements of EU competition law.

On October 2, 2024, the General Court dismissed Crown’s and Silgan’s respective appeals[1] against a 2022 Commission decision imposing a total fine of €31.5 million for participating in a cartel concerning the sales of metal cans and closures in Germany between 2011 and 2014.[2]  The judgments serve as a reminder of the General Court’s tendency to defer to the Commission’s cartel enforcement practice, including on the conditions for accepting case referrals from national competition authorities, particularly in cases that were initially settled by the applicants. 

On October 1, 2024, amendments to the Statute of the Court of Justice of the European Union entered into effect, ushering in a significant reform to the European judiciary.[1]  As a result of the reform, the jurisdiction to issue preliminary rulings has been partially transferred from the Court of Justice to the General Court for cases falling exclusively within six well-established legal areas, including VAT, excise duties, and tariffs.  Conversely, the Court of Justice retains jurisdiction to issue preliminary rulings in competition law and other areas which routinely raise complex questions of principle and consistency.  The reform is designed to reduce the caseload of the Court of Justice, thereby allowing it to “focus to a greater extent on its role as the supreme and constitutional court of the European Union.”[2]

On October 25, 2023, the General Court delivered its judgment in Bulgarian Energy Holding and Others v. Commission.[1]  In a shift in the case law that signals an increased focus on effects in Article 102 cases, the General Court concluded that the Commission failed to establish that the examined conduct constituted a refusal to supply, let alone an abuse of dominance by Bulgarian Energy Holding, Bulgartransgaz, and Bulgargaz (together, “the BEH Group”).  The judgment clarifies the evidentiary standard required to establish causality between purportedly abusive practices and their resulting potential anticompetitive effects.  It also concludes that the Commission infringed the BEH Group’s rights of defense during the administrative procedure.  The judgment signals the General Court’s willingness to scrutinize technical factual assessments that are often heavily contested by companies in competition law investigations.

On October 19, 2023, the Commission imposed fines totalling €13.4 million on five pharmaceutical companies (Alkaloids of Australia, Alkaloids Corporation, Boehringer, Linnea, and Transo-Pharm) for their participation in a cartel in relation to an active pharmaceutical ingredient.[1]  This is the Commission’s first-ever cartel decision in the pharmaceutical sector, adding to the Commission’s extensive enforcement action against pharmaceutical companies.

On October 5, 2023, Advocate General Rantos delivered his opinion on two questions referred to the Court of Justice by the Portuguese Competition, Regulation and Supervision Court (the “referring court”).[1]  The referring court seeks clarification on whether a ‘standalone’[2] exchange of information between competitors can be classified as a restriction by object under Article 101 TFEU, and whether that classification is permitted where it has not been possible to establish any uncertain or procompetitive effect on competition resulting from the exchange.  The case gives the Court of Justice an opportunity to clarify its recent evolution from a broad and formalistic interpretation of the concept of a restriction by object to a narrower, more  pragmatic interpretation of that concept.[3]