These two linked claims seek to recover damages incurred as a result of alleged anti-competitive conductconcerning the sale of cathode ray tubes (“CRTs”).
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 French Competition Authority Considers for the First Time an Overall Market for the Online and Offline Distribution of Toys
The French Competition Authority (the “FCA”) considered online and offline sales of toys as forming part of the same market in the context of its investigation of the merger of toy companies Luderix International and Jellej Jouets. The FCA thus relied once more on the methodology it applied in its Fnac/Darty merger clearance decision, when it concluded to the existence of a single market including both physical and online retail channels for the distribution of consumer electronics.
FCO Concludes Sector Inquiry Into Comparison Websites
On April 11, 2019, the Federal Cartel Office (“FCO”) published its final report on its sector inquiry into comparison websites.[1] This inquiry marked the first time that the FCO had analyzed a sector on the basis of its consumer protection competencies that have only recently been created. It clearly emphasized the agency’s ambition to expand its enforcement authority also into this area. Overall, the FCO came to the conclusion that several comparison portals infringed consumer rights in particular by providing misleading or incomplete information to consumers.
DCA Annuls Carlsberg’s Fine in German Beer Cartels
On April 5, 2019, the DCA annulled a €62 million fine that the FCO had imposed on Carlsberg Deutschland GmbH (“Carlsberg”) in 2014 for its participation in price-fixing agreements in 2006 (draught beer) and 2008 (draught and bottled beer) in Germany.[1] In addition to Carlsberg, the FCO had fined ten other breweries, one trade association and 14 individuals in the total amount of €338 million (including Carlsberg’s fine).[2]
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.
Enforcement by Numbers
As the charts below show, enforcement by concurrent competition agencies has increased substantially since the ERRA came into force.[1]
Five Years of “Enhanced Concurrency” in UK Antitrust
In November 2013, David Currie – then Chairman of the CMA – identified the low volume of competition cases in regulated sectors: “These sectors account in total for some 25% of the economy. They are also typically characterised by monopolistic or oligopolistic market structures. This might suggest the need for more, rather than less, competition enforcement than in other parts of the economy.”[1]
Nike: The Commission Continues Fight Against Territorial and Online Sales Restrictions in Licensing and Distribution Agreements
Background
On March 25, 2019, the Commission fined Nike €12.5 million for breaching Article 101 TFEU by imposing restrictions on cross-border and online sales of football merchandising products within the EEA.[1] The Commission granted Nike a 40% fine reduction in return for its cooperation.
The Hearing Officer for Competition Proceedings Publishes the Activity Report for 2017-2018
On March 22, 2019, the European Commission’s Hearing Officer published his Activity Report for 2017-2018.[1] The Report provides key statistics on the Hearing Officer’s activity as well as a useful summary of case law on various procedural issues.