On October 8, 2020, Advocate General Hogan delivered his opinion to the Court of Justice in which he argued the General Court had breached the principle of equal treatment in recalculating the fine imposed in 2014 by the Commission on Italian steel abrasives producer Pometon SpA (“Pometon”). Pometon was fined for participating in an alleged cartel by engaging in price coordination.[1] The Advocate General recommended that the Court of Justice should reduce the fine from €3.9 to €2.6 million.
HeidelbergCement & Schwenk Zement v. Commission: The General Court Provides Jurisdictional Clarity Where a Joint Venture Acts as the Acquirer
On October 5, 2020, the General Court dismissed an action for annulment by HeidelbergCement and Schwenk Zement (the “parent companies”) against the Commission’s April 2017 decision,[1] which prohibited their acquisition of Cemex’s Croatian and Hungarian subsidiaries through Duna-Dráva Cement (“DDC”), a full-function JV (“JV”) equally owned and controlled by the parent companies. [2]
The Council of State Declares Inadmissible an Application for Revocation of a Previous Judgment on Grounds of Error of Fact
On September 28, 2020, the Council of State[1] dismissed the appeal brought by Buzzi Unicem S.p.A. (“Buzzi”) for the revocation of a judgment previously delivered by the same court, which upheld the lower court’s ruling as well as an ICA decision fining an alleged cartel in the cement sector.[2] Buzzi challenged the judgment before the Council of State on grounds of error of fact.[3]
The Court of Justice Rejects Prysmian’s Appeal in Line With Its Prior Judgments on the Power Cables Cartels
On September 24, 2020, the Court of Justice dismissed an appeal brought by the Italian cable producer Prysmian against a €104.6 million fine imposed by the Commission for its participation in the Power Cables cartel.[1]
Court Denies Spanish NCA Status as “Court or Tribunal” for Making Preliminary References (Anesco)
On September 16, 2020, the Court of Justice ruled on the interpretation of the concept of “court or tribunal” within the meaning of Article 267 TFEU.[1] The Court of Justice held the reference for a preliminary ruling inadmissible, for lack of the referring Spanish competition authority (“CNMC”) constituting a “court or tribunal” for the purpose of Article 267 TFEU.
The French Competition Authority Reserves the Right To Refer to the European Commission Transactions That Do Not Reach the National Notification Threshold
On September 15, 2020, Margaret Vestager announced that the European Commission would, as of mid-2021, accept referrals from national competition authorities for transactions that do not reach any national notification thresholds under Article 22 of Council Regulation (EC) No 139/2004 (“Article 22”).[1] This provision enables a national competition authority to request that the European Commission examine a transaction that does not meet the European Union notification thresholds, but would affect trade between Member States and threaten to significantly affect competition.
The ICA Fines Several Gas Operators at National Level for Failure To Notify a Concentration
On September 15, 2020, the ICA imposed total fines of approximately €150,000 on Acea S.p.A. (“Acea”), Mediterranea Energia Soc. Cons. a r.l. (“Mediterranea”) and Alma C.I.S. S.r.l. (“Alma” and, together with Acea and Mediterranea, the “Parties”)[1] for failure to notify their acquisition of joint control over Pescara Distribuzione Gas S.r.l. (“Pescara Distribuzione”)[2] before implementing the transaction, in violation of Article 16(1) of Italian Law No. 287/90.[3]
A Step Forward in the Journey ‘Towards More Effective EU Merger Control’?
On September 11, 2020, Commissioner Vestager during a speech at a conference[1] for the 30th anniversary of the EU Merger Regulation (“EUMR”),[2] outlined her vision on merger control policy for the upcoming years.[3] In anticipation of the Commission’s long awaited report on its 2016 consultation on the evaluation of procedural and jurisdictional aspects of EU merger control, Commissioner Vestager shed some light on the Commission’s position on (i) notification thresholds; (ii) the simplification of merger filing and review processes; and (iii) its reflections on the substance of merger review in certain sectors.
Block Exemption Troubleshooting: How E-commerce Is Reshaping EU Antitrust Policy on Distribution Agreements
For more than a decade, the Vertical Block Exemption Regulation (“VBER”)[1] and the accompanying Guidelines on Vertical Restraints (“Guidelines”)[2] have been the essential point of reference for the assessment of resale and distribution arrangements[3] under EU antitrust rules. With the VBER set to expire in 2022, the Commission in 2018 launched a review process to determine whether it should let the regulation lapse, prolong, or revise it.[4] After almost two years of evaluation, stakeholder feedback, public consultations and dialogues with national authorities, on September 9, 2020, the Commission published its report summarizing the outcomes of the evaluation.[5] The report provides a detailed overview of the VBER’s shortcomings and points of strength, and paves the way for the possible introduction of a revised regulation within the next two years.
The FCO’s Acitivites in the First Half of 2020
On September 2, 2020, the German Federal Cartel Office (“FCO”) published its Annual Report 2019/2020 (“Annual Report”) which includes an update on the FCO’s activities in the first half of 2020.[1]