On July 9, 2020, the Commission published its annual report on competition policy, setting out the Commission’s main policy and legislative initiatives, as well as key decisions adopted in 2019.[1]
Dortmund Regional Court on Group Liability for Cartels Damages
On July 8, 2020, the Dortmund Regional Court for the first time considered a group liability of all companies forming an economic unit for cartel damages.[1] The court concluded—in line with the Court of Justice of the European Union’s (“CJEU”) recent case law—that the broader notion of an “undertaking” (in the sense of the economic unit) under EU law also applies in damages actions under national law.
The Commission Invites Feedback on the 1997 Market Definition Notice
On June 26, 2020, the Commission opened a public consultation on the 1997 Market Definition Notice (the “Notice”), which sets out the Commission’s formal guidance on the definition of the relevant product and geographic market in competition cases.[1] Until October 9, 2020, anyone interested may visit the Commission’s website (here) and submit comments and respond to the Commission’s questionnaire about the relevance, effectiveness, efficiency, coherence, and value of the Notice as a guidance instrument.
The Commission Launches its Public Consultation on the Review of the Vertical Block Exemption Regulation and Publishes a Roadmap for its Future Review of the Motor Vehicle Block Exemption Regulation
On June 2, 2020, the Commission published two inception impact assessments[1] and two public consultations which address two new policy initiatives: (1) a new market investigation tool (“new competition tool”);[2] and (2) a regulatory instrument that would ex ante govern large online platforms that act as gatekeepers with significant network effects in the European Union’s internal market.[3] These initiatives are part of the Commission’s wider efforts to modernize EU competition law in an era of digitalization. Stakeholders are invited to submit their comments up until September 8, 2020[4] and the impact assessments are expected to be submitted to the Regulatory Scrutiny Board of the Commission and be finalized in the fourth quarter of 2020.
Implications of the Three/O2 Judgment for EU Merger Control
On May 28, 2020 the General Court overturned Commissioner Vestager’s first prohibition decision, blocking a 4-to-3 merger in the UK
The ICA Opens Investigation Into Italgas for Alleged Abuse of Dominance
On May 27, 2020, the ICA opened an investigation pursuant to Article 102 TFEU into the conduct of Italgas Reti S.p.A. (“Italgas”), a fully-owned subsidiary of Italgas S.p.A.[1] The supply of gas distribution services in Italy is organized by areas comprising small groups of municipalities, called ‘minimum territorial areas’ (“ATEM”s).[2] In the ICA’s view, Italgas abused the dominant position it holds in the Venice ATEM market, comprising eight municipalities, in which it is currently the exclusive licensee of the gas distribution services in four municipalities (including Venice).
The Commission Publishes Support Studies for the Evaluation of the Vertical Block Exemption Regulation
Following the Commission’s roadmap and launch of the public consultation process,[1] on May 26, 2020, the Commission published the final report[2] with support studies for the evaluation of the Vertical Block Exemption Regulation (the “VBER”).[3] The report is part of the Commission’s evaluation of the VBER, which is set to expire on May 31, 2022.
COVID-19 Update: Time-limits for Merger Control and Antitrust Proceedings Are Gradually Resuming
By Order No. 2020-560 of May 13, 2020, the Government decided not to further postpone the time limits that had been suspended or interrupted since March 12, 2020, despite the extension of the state of health emergency. Consistently, in a press release of May 18, 2020, the French Competition Authority (“FCA”) announced that it would progressively re-instate the statutory time limits that had been interrupted or suspended in light of the state of health emergency. All of these time limits will resume on June 24, 2020 at the latest.[1]
DCA Closed Cartels Proceeding Against Alleged Member of the LPG Cartels
On May 7, 2020, the DCA closed the proceedings against Propan Rheingas GmbH & Co KG (“RG”), an alleged member of the liquefied petroleum gas (“LPG”) cartel, thereby ending an almost 15-year saga.
Aurubis’ Acquisition of Metallo Unconditionally Approved Despite Initial Buyer Power Objections
On May 4, 2020, the Commission unconditionally approved Aurubis’ proposed acquisition of Metallo, having issued formal objections just a few months earlier, in February 2020.[1] The Aurubis/Metallo decision is noteworthy for two reasons. First, in the last five years, since Margrethe Vestager became Commissioner for Competition, only one other transaction has been unconditionally cleared after the Commission had sent a Statement of Objections to the companies involved, namely Tele2 NL/T-Mobile NL in 2018.[2] Second, in Aurubis/ Metallo, the Commission’s concerns were based on buyer power, a theory of harm that has been rarely applied in the Commission’s merger review practice.