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 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.
The French Competition Authority (“FCA”) Accepts Fix-it-First Remedy and Unprecedented Behavioral Commitments in a Major Overseas Retail Deal
On May 26, 2020, the FCA conditionally approved Bernard Hayot Group’s €219 million acquisition of the Vindémia Group—one of the largest deals in French overseas territories ever reviewed by the FCA.[1] Further to an on-site investigation, the FCA cleared the transaction in Phase I, subject to a fix-it-first remedy and behavioral commitments.
FCJ Provides Useful Guidance on Umbrella Damages and the Passing on Defense in Cartels Follow-on Damages Cases
On May 19, 2020, the Federal Court of Justice (“FCJ”) overturned a judgment of the Munich Court of Appeal in one of the numerous cartel follow-on damages actions brought against members of the so-called Rail Cartel (“Schienenkartell”), this time by the Munich Transportation Authority.[1] The FCJ once more confirmed its decisional practice in the case of quota and customer protection cartels, according to which there can be no prima facie evidence that damages were incurred and/or whether individual purchase orders were affected by the cartel.[2] The decision had to be reversed, for the Munich Court of Appeal had based its decision on such prima facie evidence. Of particular interest is the FCJ’s reasoning on two other issues:
The TAR Lazio Upholds ICA Decision Concerning the Helicopter Service Cartels
On May 18, 2020,[1] the TAR Lazio rejected the applications for annulment of the ICA decision of February 13, 2019, brought by Airgreen S.r.l., Star Work Sky S.a.s., Elitellina S.r.l., Elifriulia S.r.l., Babcock Mission Critical Services Italia Sau, Heliwest S.r.l., Eliossola S.r.l. and the Italian Helicopter Association. By the said decision, the applicants were fined in a total amount of approx. €67,000,000 for anticompetitive conduct infringing Article 101 TFEU with regard to the award of contracts for forest fire-fighting activities.[2]
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]
DG COMP Responds To The COVID-19 Outbreak (May 2020)
The COVID-19 pandemic has caused significant economic disruption, including supply shortages, cost increases, and liquidity constraints resulting from a prolonged shutdown. As EU Member States and businesses respond to these challenges, their actions could raise potential issues under competition law.
FCO Clears Acquisition of Vossloh Locomotives by CRRC Zhuzou Locomotives
On April 27, 2020, after an in-depth review, the FCO cleared the acquisition of Vossloh Locomotives GmbH Kiel (“Vossloh”) by CRRC Zhuzhou Locomotives Co., Ltd. (“CRRC”).[1] German shunter manufacturer Vossloh is the market leader in Europe with a market share of 40 to 50 percent. CRRC is a state-owned Chinese company and the world’s largest manufacturer of rolling stock, selling its products predominantly in China.
ICA Notice on Cooperation Agreements Between Businesses in the COVID-19 Emergency
On April 22, 2020, the Italian Competition Authority (the “ICA”) issued a notice (the “Notice”) providing guidelines on the assessment of cooperation agreements in the context of the Covid-19 emergency.[1]