On June 27, 2019, the German Federal Cartel Office (“FCO”) published its Annual Report 2018 as well as its biennial Activity Report 2017/2018.[1] Andreas Mundt, the President of the FCO, pointed out that the FCO has a clear digital agenda with a focus on the digital economy and the protection of consumer rights, which it will continue to pursue this year.
CMA Publishes Merger Remedy Evaluation
In June 2019, the CMA published its Merger Remedy Evaluations Report (the Report) – the latest in a series of case evaluations conducted to develop the CMA’s expertise, policy, and practice on merger remedies. The Report notes that its findings will be “used to inform the way in which the CMA approaches remedy design and implementation in subsequent cases.” The Report contains useful guidance for parties on the types of remedies that the CMA is prepared to accept or may require.
The French Supreme Court Annuls an Order of the Paris Court of Appeals Regarding Dawn Raids Conducted at Whirlpool France
In a ruling of June 13, 2019, the French Supreme Court annulled the November 8, 2017 order of the Paris Court of Appeals that confirmed the validity of the search warrants authorizing the French Competition Authority (the “FCA”) to carry out dawn raids at Whirlpool France’s premises.[1]
The Inspection Générale Des Finances and the Conseil Général de L’éConomie Publishes a Report on EU Competition Policy and Industrial Strategy
On June 2, 2019, the Inspection générale des finances and the Conseil général de l’économie published a report on the EU competition policy and industrial strategy (the “Report”). The Report was commissioned by the Ministry of Economy and Finance in December 2018 and aimed at assessing EU competition policy in the context of the 2019 European elections. The Report highlights the necessity to reshape the procedures and legal instruments used by the European Commission, in particular in merger control, to answer a number of criticisms raised by the French and German governments following the decision of the European Commission to prohibit the Alstom- Siemens merger on February 6, 2019.[1] The Report states that competition policy seems to be applied more strictly in Europe than elsewhere, including China, and that the European Union’s strategic and industrial interests should be given more consideration in competition decisions.
The Commission and the Belgian Competition Authority Simulataneously Raid French and Belgian Grocery Retailers
On May 20, 2019, the Commission carried out dawn raids at the premises of two grocery retailers in France, Casino and Intermarché-Les Mousquetaires.[1] On the same day, the Belgian Competition Authority raided Carrefour and Provera, a joint purchasing venture of grocery retailers Cora, Match, and Louis Delhaize. Although the two series of dawn raids occurred simultaneously, the Commission’s press release leaves open whether the raids were coordinated.
The French Conseil Constitutionnel Invalidates the Provisions of the PACTE Law Empowering the Government to Transpose the ECN+ Directive Into French Law
On May 16, 2019, the French Conseil constitutionnel validated most of the provisions of the law on business growth and transformation (“loi relative à la croissance et la transformation des entreprises” or “PACTE law”), but deemed that the provisions relating to the transposition of the ECN+ directive into French law violated the Constitution.
The Conseil Constitutionnel Validates Provisions Enabling the French Competition Authority to Request Access to Telephone Data From Companies’ Employees
On May 16, 2019, the Conseil Constitutionnel issued a decision on the conformity with the French Constitution of various provisions of the Law on the growth and the transformation of companies (“Loi Pacte”).[1] The Conseil censured several provisions of that law for the lack of connection with the initial bill. These included in particular Article 211, which provided the Government with the power to transpose the directive ECN+ into French law, and adopt various measures meant to strengthen the efficiency of procedures implemented by the FCA.
The Commission Fines Ab Inbev €200 Million for Abusing Its Dominance on the Belgian Beer Market by Restricting Cross-border Sales
On May 13, 2019, the Commission fined AB InBev €200 million for abusing its dominant position on the Belgian beer market by restricting the ability of Belgian customers to purchase cheaper products from the neighboring Netherlands between February 9, 2009, and October 31, 2016.[1] The Commission’s investigation commenced on June 30, 2016, just a month after it had concluded an in-depth examination of several EU beer markets, including Belgium, in its merger review of AB InBev/SABMiller (“SABMiller Decision”).[2]
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.