CMA merger decisions are subject to judicial review by the Competition Appeal Tribunal (CAT). Challenges to the CMA’s substantive decision-making have, however, generally been unsuccessful. Although the CAT has been willing to intervene on matters of procedural fairness and errors of law, as recent decisions confirm, the CAT is reluctant to intervene in the CMA’s assessment of competitive effects and identification of remedies.
Statements by Concurrent Sectoral Regulators
Financial Conduct Authority (FCA) and Payment Systems Regulator (PSR)
The FCA and PSR announced that they support the CMA’s guidance on its approach to business cooperation in response to COVID-19 under competition law and will take a consistent approach to their competition law enforcement activity in the financial services sector. This means that these regulators will not enforce competition law in a way that impedes financial services providers from working together to provide essential services to consumers during the COVID-19 pandemic.
The French Competition Authority Suspends Procedural Time Limits Due to COVID-19
On March 27, 2020, the French Competition Authority (“FCA”) published a press release announcing that a number of applicable deadlines for merger review and antitrust proceedings will be adapted further to legal order no. 2020-306 of March 25, 2020 relating to the extension of time- limits during the state of public health emergency.
Judicial Procedure Updates (COVID-19)
COVID-19 and Civil Procedure Rule Updates. On 25 March 2020, Civil Procedure Rule Practice Direction 51Y (PD51Y) came into force, to facilitate video and audio hearings for the duration of the pandemic.
The European Commission Authorizes an Amendment to the French Recovery Plan
Higgins v Barclays, Evans v Barclay (FX Cartels)
On 6 March 2020, the CAT handed down its judgment in an application for a preliminary hearing on a timing
DG COMP Responds to the COVID-19 Outbreak (March 2020)
The COVID-19 pandemic has caused significant economic disruption, including supply shortages, cost increases, and liquidity constraints resulting from a prolonged shutdown. As EU Member States and businesses respond to these challenges, and even as lockdown measures are gradually eased, their actions continue to raise potential issues under competition law.
Europcar UK Limited and Others v Mastercard Inc. and Others
On 31 January 2020, the Competition Appeal Tribunal (CAT) stayed a claim for damages brought by Europcar against
The French Cour de Cassation Annuls the Paris Court of Appeal’s Judgment in the Interbank Fees Case for the Second Time
On January 29, 2020, the Cour de Cassation annulled the judgment of the Paris Court of Appeal in the interbank fees case for interpreting the concept of restriction by object too broadly. The Cour de Cassation noted that only coordination practices that harm competition to a sufficient degree may be qualified as restrictions by object. Absent a clearly established anticompetitive object, likely anticompetitive effects must be proven to establish an infringement of Articles 101(1) TFEU and L. 420-1 of the French Commercial Code.
The Cour de Cassation Issues Two Judgments Relating to the Business Secret Protection in the FCA’s Proceedings
On January 29, 2020, the Cour de Cassation issued two judgments relating to decisions from the FCA’s Rapporteur Général to waive the protection of business secrets granted to a party in proceedings before the FCA. In the first judgment, the Cour de Cassation held that the Rapporteur Général must provide concrete reasons in order to waive the protection of business secrets granted to a party in proceedings involving other parties. Conversely, in the second judgment, the proceedings did not involve any other parties, and the Cour de Cassation upheld the Rapporteur Général’s decision to waive the protection of business secrets initially granted to a party. The Cour de Cassation considered that the Rapporteur Général’s decision would not risk exposing that party’s business secrets to any third parties.