On October 10, 2019, the Working Group on Competition Law held its annual meeting in Bonn. The FCO and more than 120 competition law experts discussed revisions to the European Vertical Block Exemption Regulation (“VBER”)[1] in light of the digital transformation of the economy.[2] In preparation for this meeting, the FCO had published a comprehensive background paper,[3] setting out the need for adaption and possible adjustments to the VBER to address online distribution and other challenges posed by the digital transformation of the economy.
CMA’s Increasing Enforcement Of Document Requests In Merger Review
There is a global trend of increasingly burdensome demands by competition authorities conducting merger review for the submission of merging parties’ internal documents, and the CMA is no exception. In recent months the CMA has also taken greater steps to enforce such requests, in particular by fining companies for failing to comply with formal requests for documents under Section 109 of the Enterprise Act 2002 (“Section 109 Notices”).
New Guidelines on the Control of Abusive Behavior in the Electricity Generation and Wholesale Trade Sector
On September 27, 2019, the FCO and the Federal Network Agency (“FNA”) jointly published guidelines on the control of the abuse of a dominant position in relation to electricity generation and wholesale trade (“Guidelines”).[1]
FCO Revokes Antitrust Exemption for Dry Building Materials Cartels
On September 20, 2019, the FCO prohibited SAKRET Trockenbaustoffe Europa GmbH & Co. KG (“SAKRET Europe”) from continuing to undertake distribution activities for its shareholders and sublicensees of the SAKRET brand regarding the sale of dry building materials.[1] In doing so, the FCO revoked an exemption it had granted back in 1982.
Monopolies Commission Publishes 7th Sector Report on Energy
On September 18, 2019, the Monopolies Commission published its biennial sector report on the development of competition in the German electricity and gas markets.[1] The report identifies three main areas of competition concerns: (i) monopolistic tendencies in connection with the expansion of e-mobility, (ii) insufficient competition for onshore wind energy tenders, and (iii) potential abusive pricing practices in electricity wholesale trading:
Commission Approves The Acquisition Of Innogy By E.ON Subject To Commitments
Following a public consultation launched in July 2019,[1] the Commission adopted a guidance document[2] on the protection of confidential information in proceedings for the private enforcement of EU competition law based on the Antitrust Damages Directive (“ADD”).[3] The Confidentiality Guidance is intended for use by national courts to ensure consistency across Member States regarding access to and the protection of confidential information disclosed in private enforcement proceedings. The Communication is not binding and does not modify the rules applicable in different Member States, but rather outlines a number of measures and tools national courts may employ to help protect confidential information.
French Competition Authority Launches Consultation on Revised Merger Guidelines
On September 16, 2019, the French competition authority (“FCA”) launched a two-month public consultation on revised merger guidelines (“the draft guidelines”), which constitutes the final step of the modernization and simplification of merger control the FCA had initiated in the fall of 2017. This overhaul of the FCA’s merger control guidelines aims to extend the scope of the simplified procedure, update the 2013 guidelines with recent case law and the FCA’s exchanges with the European Commission and other national competition authorities, while reorganizing the guidelines and enriching them with examples. The public consultation was open until November 16, 2019. The new guidelines are scheduled to be adopted before the end of the year.
Vigorous Antitrust Enforcement Likely To Continue During Margrethe Vestager’s Second Term as Competition Commissioner
Margrethe Vestager has been re-appointed as Commissioner for Competition for a second term. If her appointment is approved by the European Parliament, as is expected, she would be in line for a combined 10-year term, which would make her the longest-serving Competition Commissioner. In addition to the competition portfolio, Ms. Vestager will also take on responsibility for the “a Europe fit for the digital age” agenda, and has been designated as one of the executive vice-presidents of the Commission.
General Court Upholds Poland’s Challenge To OPAL Pipeline Decision
On September 10, 2019, the General Court annulled a European Commission decision concerning the Ostseepipeline-Anbindungsleitung (“OPAL”) gas pipeline for breaching the principle of energy solidarity. The decision approved raising a cap on Gazprom’s use of the pipeline.