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.
On 10 November 2022, the European Court of Justice (CJEU) issued a preliminary ruling[1] on the interpretation of the disclosure obligation under the EU directive that harmonised national rules governing actions for damages for breaches of competition law in EU member states and the UK (the Damages Directive).[2]
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.
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 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 3, 2022, the Commission adopted a Revised Informal Guidance Notice on the application of Articles 101 and 102 TFEU to novel or unresolved competition law questions.[1] The Revised Informal Guidance Notice gives the Commission more flexibility in issuing informal advice compared to the 2004 guidance.[2]
On September 26, 2022, the Federal Ministry for Economic Affairs and Climate Action published a draft of the Competition Enforcement Act which will amend the German Act Against Restraints of Competition (“ARC”) for the 11th time (“Draft 11th Amendment”).[1] The aim of the Draft 11th Amendment is to strengthen the Federal Cartel Office’s (“FCO”) enforcement powers beyond the existing enforcement of antitrust and abuse of dominance violations.
On September 29, 2022, the Commission adopted its Guidelines on the application of Union competition law to collective agreements regarding the working conditions of solo self-employed persons (“Guidelines”).[1] The Guidelines represent a part of a bigger push by the Commission to improve working conditions in platform work in the EU.[2]
In the second episode of Cleary Gottlieb’s Antitrust Review podcast, a panel of Cleary Gottlieb partners discuss the achievements to