On February 9, 2024, the General Court[1] dismissed an application from ByteDance Ltd (“ByteDance”), the parent company of social media platform TikTok, to suspend the Commission decision[2] designating ByteDance as a “gatekeeper” under the Digital Markets Act (“DMA”).[3] ByteDance had argued that compliance with the restrictions on combining data between services (Article 5(2) DMA) and the obligation to provide the Commission with an “independently audited description” of TikTok’s profiling techniques (Article 15 DMA), would lead to serious and irreparable harm.[4] The General Court found that ByteDance had failed to establish such harm to the requisite standard. While the General Court order offers little insight into the substantive debate on the scope of the DMA, it showcases the hurdles gatekeepers have to overcome to seek interim relief from the DMA before the European Courts.
Consumer Goods & Retail
The French Competition Authority fines Chocolats De Neuville for hindering its franchisees’ commercial freedom
On February 6, 2024, the French Competition Authority (“FCA”) imposed a four million euros fine on chocolate maker De Neuville (“De Neuville”) and its parent company Savencia Holding for restricting their franchisees’ freedom to sell De Neuville chocolates online and to professional customers.[1]
CMA Publishes Provisional Approach to Implementing the UK’s Forthcoming Digital Markets Regulatory Regime
On 11 January 2024, the CMA published an overview of its “provisional approach to implement the new Digital Markets competition regime” (Overview), the new regulatory powers the CMA is set to take on once the Digital Markets, Competition, and Consumers Bill (DMCC) passes through Parliament (see earlier posts here and here). The CMA published this Overview in response to the UK government’s request on 4 January that CMA publish a “high-level plan” for implementing the digital markets competition regime.[1]
China Introduces Revisions to Merger Notification Thresholds
Court of Appeal upholds extraterritorial information-gathering powers
In a unanimous judgment, the Court of Appeal of England and Wales (CoA) reaffirmed the Competition and Market Authority’s (CMA) power to require overseas companies with no branches in the UK to produce documents and information when investigating suspected anticompetitive conduct. The CoA considered that not allowing the CMA to obtain information from overseas companies would create a “gaping lacuna” in the CMA’s ability to perform its statutory duties.
CMA Publishes Novel “Trends in Digital Markets” Report
On 14 December 2023, the Competition and Markets Authority (CMA) published its first horizon scanning report examining ten trends in digital markets that the CMA expects will be relevant over the next five years and beyond.
The report aims to “draw on available evidence to discuss and present possible future developments and potential implications for competition and consumers”.[1] The trends focus on areas such as artificial intelligence (AI), interoperability, and privacy.
The French Competition Authority fines 15 industry players €20 million for having coordinated their strategy regarding the presence or absence of Bisphenol A in food containers
In a 350-page decision dated December 29, 2023, the French Competition Authority (“FCA”) sanctioned four professional associations and eleven undertakings, in their capacity as members of these associations, for having implemented a collective strategy to prevent market players from competing on the presence or absence of Bisphenol A (“BPA”) in food containers (the “Decision”). [1] The total fine amounts to €19,543,400.
French Competition Authority Sanctions Rolex With a Record Fine for Prohibiting Online Sales
On December 19, 2023, the French Competition Authority (“FCA”) fined Rolex for having prevented its authorized retailers from selling its products online for over ten years (the “Decision”).[1] The FCA considered that such a prohibition constituted a vertical agreement restricting competition, rejecting Rolex’s argument that it was necessary to prevent counterfeiting and parallel trade. The FCA imposed a fine of €91 million, which is the highest fine imposed to date by the FCA in relation to a prohibition of online sales. The FCA also investigated whether Rolex had engaged in resale price maintenance between 2011 and 2022, but ultimately rejected this prong of the complainants’ claim for lack of evidence.
The French Competition Authority publishes its revised leniency guidelines
On December 15, 2023, the French Competition Authority (“FCA”) published its Revised Leniency Guidelines, which repealed and replaced the 2015 guidelines.[1] The Revised Leniency Guidelines were adopted as part of the implementation of the “DDADUE” law,[2] the ECN+ directive,[3] and the “Damages” directive.[4] They aim to provide greater legal certainty for leniency applicants and modernize the leniency application procedure.
The French Competition Authority Fines Mariage Frères for Anticompetitively Restricting its Distributors’ Commercial Freedom
On December 11, 2023, the French Competition Authority (“FCA”) imposed a €4 million fine on Mariage Frères SAS and one of its subsidiaries, Mariage Frères International SAS (together, “Mariage Frères”), a French producer of premium teas.[1] The FCA found that Mariage Frères had been prohibiting distributors from (i) reselling its branded products online and (ii) reselling its branded products to other retailers for over 14 years, two practices prohibited by the Vertical Block Exemption Regulation (“VBER”) under both the former and new regimes.[2]