On 6 November, the CMA published new draft guidance on jurisdiction and procedure in UK merger cases (Draft J&P Guidance) and on the CMA’s mergers intelligence function. On 17 November, it published new draft guidance on the substantive assessment of mergers in the UK (Draft Substantive Guidance).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.
Advocate General Hogan Recommends Second Fine Reduction for Breach of Rights of Defense in Steel Abrasives Hybrid Cartels Case
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]