Consumer Goods & Retail

On April 27, 2020[1] the Council of State upheld two judgments issued by the Regional Administrative Court of Lazio (“TAR Lazio”) in 2016,[2] which had annulled an ICA decision fining Chef Express S.p.A. (“Chef Express”) and My Chef Ristorazione Commerciale S.p.A. (“My Chef”, and together with Chef Express, the “Companies”) for alleged bid rigging in the market for food catering services in Italian motorway restaurants (the “Decision”).[3]

In particular, the Council of State agreed with the TAR Lazio that the ICA had not adequately proved a collusive scheme.

On April 22, 2020, the Italian Competition Authority (the “ICA”) issued a notice (the “Notice”) providing guidelines on the assessment of cooperation agreements in the context of the Covid-19 emergency.[1]

On April 3, 2020, the Commission launched a public consultation to review the adequacy of the 1997 Market Definition Notice (the “Notice”), which sets out the Commission’s formal guidance on the definition of relevant product and geographic market.[1] This kicks off a six-week process to solicit opinions from anyone interested.

Since the beginning of the COVID-19 outbreak, the French Government has notified a series of measures to the European Commission on the basis of the Temporary Framework adopted by the European Commission in order to enable Member States to support their economy in this specific context.[1] Such measures were authorized by the Commission under Article 107(3)(b) TFEU, as listed below.[2] The Commission also authorized a tax deferral scheme directed at French airlines under Article 107(2)(b) TFEU “to make good the damage caused by natural disasters or exceptional circumstances”.

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, their actions continue to raise potential issues under EU competition law.

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.

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.

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.

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.

On March 4, 2020, the Court of Justice dismissed Mowi ASA (formerly Marine Harvest ASA)’s appeal against two fines for having acquired control over salmon producer Morpol prior to the European Commission’s (the “Commission”) merger control approval.[1] The judgment clarifies the scope of Article 7(2) of the EU Merger Regulation (the “EUMR”), which allows an acquisition of control to be notified after the fact, if it takes place in the context of a public bid. The judgment explains that the exemption does not apply if the public bid follows an initial, separate, transaction which already gave rise to an acquisition of control. The judgment also confirms that the Commission is allowed to impose two separate fines when a transaction is implemented before the merger notification. This article updates our analysis of the General Court judgment as reported in our European Competition Report of Q 4, 2017.