On 22 December 2020, the CAT dismissed FP McCann Limited’s (FPM) appeal against the penalty imposed on FPM by the CMA for participating in an illegal cartel relating to precast concrete drainage products (see UK Competition Newsletter, October 2019).
Discovery In Private Follow-On Cartel Litigation
On December 17, 2020, the Hanover Regional Court ordered the disclosure of the confidential version of an infringement decision of the EC (the “Infringement Decision”).[1] It is the first decision granting access to a confidential version of a previously nondisclosed decision by a competition authority. Other courts have shown a tendency to limit the scope of the disclosure rights.[2]
The Commission Publishes Report on the Implementation of the Damages Directive
The Paris Court of Appeals Ruled That the Decision of Some of the Parties to an Antitrust Investigation Not To Contest the FCA’s Objections Does Not Prevent Other Companies From Challenging the Objections
On December 3, 2020,[1] the Paris Court of Appeals ruled in the Brenntag case that a company challenging its participation in a cartel cannot be held liable simply because other companies did not contest the alleged objections from the FCA. This judgment, issued in the context of a cartel case in the chemical distribution sector, constitutes a turnaround in the case law, although the Court of Appeals, ruling on the merits of the case, ultimately confirmed the fines imposed by the FCA.
The Bonn Regional Court Dismisses Baywa’s Damages Action for State Liability Against the FCO in the Context of the Leniency Program
On December 2, 2020, the Regional Court of Bonn dismissed BayWa AG’s (“BayWa”) action for state liability against the Republic of Germany and the FCO for a breach of the constitutional prohibition of discrimination in the context of the FCO’s leniency program.[1]
Proposals for Reform of Competition Law Policy: Proposed Revision of the Commission’s Market Definition Guidance
Over the past several months, there have been a number of statements by politicians and Member State governments regarding the reform of EU competition law. Much of this debate is fundamentally linked to how authorities should define the relevant product and geographic markets that guide their antitrust and merger investigations.
New Investigative Power for the French Competition Authority to Access Telephone Communications Data
Decree n°2019-1247 of November 28, 2019, published in the Official Journal of the French Republic on November 29, 2019 (the “Decree”), provides the procedural framework for the FCA’s new power to access telephone communications data for the purpose of antitrust investigations under Article L. 450-3-3 of the French Commercial Code. This framework was introduced by the Pacte Law [1] and allows the FCA to request access to technical information regarding the identity of a caller, the telecommunication terminals used, the data, time, and duration of each call, and the phone numbers called. It will be operational as soon as the Data Request Supervisor (“contrôleur des demandes de données de connexion”) is appointed (the Supervisor will be appointed among the judges of the French Administrative or Civil Supreme Court).[2]
CMA Proposes New Procedural and Substantive Merger Guidance
On 6 November, the CMA published new draft guidance on jurisdiction and procedure in UK merger cases (Draft J&P Guidance) and on the CMA’s mergers intelligence function. On 17 November, it published new draft guidance on the substantive assessment of mergers in the UK (Draft Substantive Guidance). The draft sets of Guidance incorporate developments in the case law, reflect the evolution of the CMA’s policies and procedures, and take account of changes in the legal framework concerning public interest mergers. Together, they confirm the CMA’s expansive approach to asserting jurisdiction and reinforce a more interventionist and less formalistic approach to assessing mergers, especially in digital markets, that has been evident in the run-up to Brexit.
Presumption of Decisive Influence: Court of Justice Confirms in Pirelli That Parent Companies Will Pay the Price for Errant Subsidiaries
On October 28, 2020, the Court of Justice rejected an appeal by Pirelli & C. SpA (“Pirelli”) against a 2018 judgment of the EU General Court upholding a 2014 Commission decision which held the power cables manufacturer jointly and severally liable, with its former subsidiary Prysmian, for Prysmian’s participation in a bid-rigging cartel. Pirelli’s appeal focused on the concept of parental liability and the Commission’s obligation to explain its reasoning.
ICA Imposes €27 Million Fine on Corepla for Abusing Its Dominant Position in the Market for Management of Plastic Waste Recycling Services
On October 27, 2020, the ICA issued a decision (the “Decision”)[1] fining the Italian Consortium for the Collection, Recycling and Recovery of Plastic Packaging (“COREPLA”) € 27,400,477 for allegedly abusing its dominant position in the market for management of plastic waste recycling services.