Automotive & Mobility

In recent years, the CMA has been strengthening its approach to merger control as it prepares for its new status as a global enforcer with expanded jurisdiction following the UK’s exit from the EU. Since 1 January 2021, the CMA has been able to investigate the UK aspects of mergers that also qualify for review by the EU Commission (EC). Many transactions, including major global deals, are therefore now subject to parallel review by the EC and CMA.

On March 26, 2021, the French Conseil constitutionnel ruled that Article L. 464-2(5), 2° of the French Commercial Code, under which the French Competition Authority (“FCA”) may impose a fine of up to 1% of an undertaking’s turnover for obstructing an investigation, was contrary to the French Constitution.[1]

On March 26, 2021, the Commission adopted a Communication on the application of the referral mechanism pursuant to Article 22 of the EU Merger Regulation (“EUMR”)[1] and announced a further simplification of merger control proceedings,[2] effective immediately.

On 18 March, the CMA published new Merger Assessment Guidelines (the New Guidelines). Under the New Guidelines, the CMA will adopt a more flexible approach to the substantive assessment of mergers, particularly in digital markets. The New Guidelines also suggest the CMA will look to intervene in mergers where market shares are low or where the evidence of anticompetitive effects is slim.

On 5 March 2021, the Court of Appeal rejected an appeal by truck manufacturers in Paccar Inc. and others v Road Haulage Association and others against the Competition Appeal Tribunal (CAT)’s preliminary ruling of 18 October 2019. The preliminary ruling concerned the funding arrangements of two related applications by UK Trucks Claim Ltd and the Road Haulage Association for collective proceeding orders on behalf of trucks purchasers. 

On February 10, 2021, the Dortmund Regional Court set out principles for determining jurisdiction, specifically in competition damages litigation.[1]

On February 5, 2021, the Commission unconditionally cleared the creation of a joint venture (“JV”) between the Volvo Group (“Volvo”) and Daimler Truck AG (“Daimler”).[1] The JV will be active in the relatively novel, but rapidly evolving, hydrogen fuel-cell technology sector, which promises a “green” future in particular for transport.[2]

In a judgment issued on February 2, 2021,[1] the Council of State confirmed that Rete Ferroviaria Italiana S.p.A. (the Italian railway network manager, “RFI”) and Trenitalia S.p.A. (an Italian railway transport operator, “Trenitalia”) abused market dominance by engaging in dilatory tactics in the context of proceedings with the competent authorities, thus hindering access of a new entrant, Arenaways S.p.A. (“Arenaways”), to the railway passenger transport sector.

In a judgment issued on February 2, 2021,[1] the Council of State confirmed that Rete Ferroviaria Italiana S.p.A. (the Italian railway network manager, “RFI”) and Trenitalia S.p.A. (an Italian railway transport operator, “Trenitalia”) abused market dominance by engaging in dilatory tactics in the context of proceedings with the competent authorities, thus hindering access of a new entrant, Arenaways S.p.A. (“Arenaways”), to the railway passenger transport sector.

On January 27, 2021, the Commission published its decision to conditionally approve Novelis’ acquisition of Aleris, two suppliers of flat-rolled aluminum sheets.[1]

The Commission pushed the boundaries of its own powers in merger control proceedings, both in terms of substance and procedure. With respect to substance, the Commission introduced in its decision a new theory of harm for the competitive analysis of transactions, particularly with respect to markets affected by significant capacity constraints. From a procedural standpoint, the Commission adopted far-reaching measures to enforce the commitments that had been offered– and eventually infringed–by the parties to the transaction.