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.
State Aid: Court of Justice Clarifies Limits for Multinational Tax Deals in Fiat Chrysler
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.
Digital Services Act Published in the EU Official Journal
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.
The Commission Encourages Immunity & Leniency Applications Through A “No-Name” Basis Engagement And “Hypothetical” Immunity/Leniency Applications
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]
The ICA Ends an Abuse of Dominance Investigation Into Mastercard’s Conduct by Accepting and Making Binding the Company’s Commitments Relating to Contactless Payments
On October 11, 2022, the ICA closed an Article 102 TFEU investigation into Mastercard Europe SA (“Mastercard”)’s conduct by accepting the commitments offered by Mastercard relating to its double-tap mandate for contactless payments with co-badged payment cards (i.e., cards that can be used on more than one payment network) (the “Decision”),[1] which precluded retailers operating point-of-sale (“POS”) terminals from accepting single-tap payments from co-badged cards.
The Commission’s Revised Informal Guidance Notice: In Search of A Win-Win?
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]
New Toolkit for Intervention Under the Draft Competition Enforcement Act
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.
The Commission Improves The Position Of Certain Collective Agreements By Solo Self-Employed People
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]
Antitrust Review Episode 2: Vestager’s Second Term in Review
In the second episode of Cleary Gottlieb’s Antitrust Review podcast, a panel of Cleary Gottlieb partners discuss the achievements to
The Italian Parliament Approves Competition Law Reform
On August 5, 2022, the Italian Parliament adopted Law No. 118, the “2021 Annual Competition Law” (the “ACL”). The ACL, which will enter into force on August 27, 2022, amends the Italian Competition Law (Law No. 287/90) in various respects.