On May 14, 2019, the Commission announced the opening of an investigation into Insurance Ireland, an industry association of Irish insurers that includes Allianz, Hertz, Liberty, AIG, and AXA. Insurance Ireland is suspected of impeding prospective members’ access to its “Insurance Link” data pool.[1]
FCO Rapporteurs’ Opinions Protected From Access
On May 9, 2019, the German Federal Administrative Court (“FAC”) ruled that access to the preparatory notes (so-called “opinions”) of the rapporteurs of the FCO’s decision divisions under the German Freedom of Information Act is restricted, because public access to the rapporteurs’ opinions would jeopardize the decision divisions’ deliberation process.[1] The FAC thus ultimately confirmed the FCO’s denial of a journalist association’s access request to information on one of the FCO’s merger assessments, including access to the rapporteur’s opinions.
FCO Rapporteurs’ Opinions Protected From Access
On May 9, 2019, the German Federal Administrative Court (“FAC”) ruled that access to the preparatory notes (so-called “opinions”) of the rapporteurs of the FCO’s decision divisions under the German Freedom of Information Act is restricted, because public access to the rapporteurs’ opinions would jeopardize the decision divisions’ deliberation process.[1] The FAC thus ultimately confirmed the FCO’s denial of a journalist association’s access request to information on one of the FCO’s merger assessments, including access to the rapporteur’s opinions.
Advocate General Tanchey Recommends Dismissing the Commission’s Appeal in Icap
On May 2, 2019, Advocate General Tanchev (“AG Tanchev”) recommended dismissing the Commission’s appeal against the General Court’s ruling in Icap.[1] According to AG Tanchev, the General Court was correct in holding that the Commission’s decision provided insufficient reasoning as regards the determination of the fines imposed on Icap.
CMA’s Use of Director Disqualification Powers Reflects Renewed Focus On Individual Responsibility
In May 2019, the CMA obtained competition disqualification undertakings (“CDUs”) from three individuals for involvement in a cartel relating to
The Commission Accepts Visa and Mastercard Commitments That End Decade-long Antitrust Row About Multi-lateral Interchange Fees
Following the Commission’s market test of Visa’s and Mastercard’s commitments offered on April 29, 2019, as reported in our December 2018 newsletter, the Commission accepted the companies’ commitments to cap their inter-regional multi-lateral interchange fees (“MIFs”).[1] The commitments put an end to the first publically reported probe into inter-regional MIFs by any antitrust authority worldwide, which was opened by the Commission in 2013.
Merricks v Mastercard
Following a 2007 European Commission infringement decision concerning Mastercard’s multilateral interchange fee (MIF), Mr. Merricks sought to bring collective proceedings against Mastercard. These proceedings sought to claim damages on behalf of 46.2 million people in the UK who were purportedly affected by the MIF.
Dixon/Europcar v Mastercard
On 9 April 2019, the CAT granted Mastercard partial permission to appeal the CAT’s February 2019 judgment. In that judgment
Hearing Officer Rules That Statements Made by Former Commissioner Almunia Did Not Breach the Presumption of Innocence in Euribar Proceedings
On April 9, 2019, the Commission published the Final Report of the Hearing Officer on procedural issues relating to its 2016 decision in the Euribor case, in which it fined Crédit Agricole, HSBC and JPMorgan Chase a total of €485 million for participating in a cartel in euro interest rate derivatives.
Recent Jurisprudence on Prima Facie Evidence vs. Factual Presumption in Cartels Follow-on Damages Actions
On December 11, 2018, the German Federal Court of Justice (“FCJ”) held that, at least in relation to quota fixing and customer allocation cartels, plaintiffs could no longer rely on prima facie evidence to establish that a cartel infringement led to causal damage.[1] The FCJ accepted, however, a factual presumption (tatsächliche Vermutung)— softer compared to prima facie evidence—that cartels would lead to an overcharge, and held that such a presumption was of “high indicative significance”. Since then, lower courts have rendered a number of judgments and struggled with applying the new evidentiary standard in practice.