Logistics & Transportation

On December 23, 2020, the French Competition Authority (“FCA”) presented a summary report of its 2020 activity and set out its priorities for 2021.[1]

On December 14, 2020, six years after the adoption of the Damages Directive,[1] the Commission published a report[2] analyzing its implementation across Member States.[3] The Damages Directive was introduced to harmonize the procedural rules for antitrust damages actions.

On December 8, 2020, the FCJ overturned a decision of the DCA concerning an increase in cancellation fees for track access charges imposed by Deutsche Bahn AG (“DB”) between 2008 and 2011. The plaintiff demanded the repayment of a partial amount of the cancellation fees paid following a price increase of 150%. The FCJ referred the case back to the DCA.[1]

Over the past several months, there have been a number of statements by politicians and Member State governments regarding the reform of EU competition law. Much of this debate is fundamentally linked to how authorities should define the relevant product and geographic markets that guide their antitrust and merger investigations.

Decree n°2019-1247 of November 28, 2019, published in the Official Journal of the French Republic on November 29, 2019 (the “Decree”), provides the procedural framework for the FCA’s new power to access telephone communications data for the purpose of antitrust investigations under Article L. 450-3-3 of the French Commercial Code. This framework was introduced by the Pacte Law [1] and allows the FCA to request access to technical information regarding the identity of a caller, the telecommunication terminals used, the data, time, and duration of each call, and the phone numbers called. It will be operational as soon as the Data Request Supervisor (“contrôleur des demandes de données de connexion”) is appointed (the Supervisor will be appointed among the judges of the French Administrative or Civil Supreme Court).[2]

On November 18, 2020, the General Court dismissed an appeal by AB Lietuvos geležinkeliai (“Lithuanian Railways”) against a 2017 Commission decision which found that the company had abused its dominant position on the Lithuanian rail freight market by removing a stretch of track connecting Latvia and Lithuania (the “short route”). The Commission found that the conduct prevented one of Lithuanian Railways’ major customers, the Polish stated-owned oil company AB Orlen Lietuva (“Orlen”), from switching transportation services to rival Latvian Railways.[1] The Commission and Lithuanian Railways discussed potential remedies, but failed to reach an agreement. The Commission therefore imposed a fine of €28 million. The General Court partially upheld the Commission decision, reducing the fine from €28 million to €20 million due to the limited territorial scope of the infringement.[2]

On 11 November 2020, the Court of Appeal handed down its judgment clarifying the ability of parties that settle European Commission (Commission) antitrust investigations to challenge the Commission’s findings in follow-on-damage actions. The judgment concerns an appeal relating to a preliminary issue arising in seven claims for damages following on from the 2016 Commission Trucks settlement decision (the Settlement Decision). The Court of Appeal held that the five truck manufacturers could not deny facts they had admitted in settling with the Commission – facts that were subsequently recorded in the Settlement Decision.

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.