Energy, Chemicals & Infrastructure

In a unanimous judgment, the Court of Appeal of England and Wales (CoA) reaffirmed the Competition and Market Authority’s (CMA) power to require overseas companies with no branches in the UK to produce documents and information when investigating suspected anticompetitive conduct.  The CoA considered that not allowing the CMA to obtain information from overseas companies would create a “gaping lacuna” in the CMA’s ability to perform its statutory duties. 

On 14 December 2023, the Competition and Markets Authority (CMA) published its first horizon scanning report examining ten trends in digital markets that the CMA expects will be relevant over the next five years and beyond.

The report aims to “draw on available evidence to discuss and present possible future developments and potential implications for competition and consumers”.[1]  The trends focus on areas such as artificial intelligence (AI), interoperability, and privacy.

On December 15, 2023, the French Competition Authority (“FCA”) published its Revised Leniency Guidelines, which repealed and replaced the 2015 guidelines.[1]  The Revised Leniency Guidelines were adopted as part of the implementation of the “DDADUE” law,[2] the ECN+ directive,[3] and the “Damages” directive.[4]  They aim to provide greater legal certainty for leniency applicants and modernize the leniency application procedure.

On December 7, 2023, the Commission imposed a fine of almost €48 million on Lantmännen ek för, the largest producer of ethanol in the Nordic region, for participating in a 1.5-year cartel manipulating the wholesale price of ethanol in the EEA.[1]

On December 5, 2023, the CJEU overturned the judgment of the General Court,[1] which upheld the Commission decision of June 20, 2018 finding that Luxembourg had granted unlawful State aid of €120 million to Engie.[2] 

On November 8, 2023, the Japan Fair Trade Commission (“JFTC”) held the G7 Joint Competition Enforcers and Policy Makers Summit (the “Summit”) in Tokyo.  The focus of the Summit was for the G7 competition authorities and policymakers (the “Authorities”) to discuss effective approaches to enforcing and promoting competition in digital markets.  At the Summit, the Authorities adopted the “Digital Competition Communiqué[1] (the “Communiqué”) and updated the “Compendium of approaches to improving competition in digital markets”[2] (the “Compendium”). 

On October 26, 2023, the European Court of Justice issued a preliminary ruling in EDP – Energias de Portugal and Others,[1] upon request from the Lisbon Court of Appeals, which had asked for clarification on how to assess non-compete clauses under Article 101(1) and (3) TFEU and whether these could constitute “by object” restrictions.  The Court of Justice clarified the standard of assessment of such non-compete clauses, confirming that they can be categorized as restrictions by object if they display a sufficient degree of harm to competition.

On October 18, 2023, the General Court delivered its judgment in Clariant v. Commission.[1]  It upheld the Commission’s settlement decision in the Ethylene case,[2] following an appeal by Clariant, who argued that the Commission erred in: (i) applying a 50% recidivism multiplier to Clariant in circumstances where the previous infringement in which it had participated was not a purchasing cartel, but rather a sales cartel; and (ii) applying a 10% fine increase (to all participants) on account of the infringement being a purchasing cartel, to ensure adequate deterrence.  The General Court also rejected a counterclaim lodged by the Commission, in which the Commission sought to increase the fine imposed on Clariant by removing its 10% settlement discount, on the basis that Clariant had accepted to be fined in the context of settlement proceedings.

The French Ministry for Economy has blocked under FDI rules U.S.-based leading provider of fluid motion and control products and services Flowserve Corporation’s (“Flowserve”) USD 245 million proposed acquisition of Velan Inc (“Velan”), a Canada-based leading provider of industrial steel valves.[1]  

Summary

On September 7, 2023, the French Competition Authority (“FCA”) imposed fines totaling €31.2 million on five companies active in the nuclear dismantling sector for colluding on tenders organized by the French Commission for Atomic Energy and Alternative Energies (Commissariat à l’Energie Atomique et aux Energies Alternatives, “CEA”) at a nuclear site in Marcoule, in the South of France.[1]