Industries

On March 14, 2019, the ECJ held that the determination of persons liable for damages for an EU competition law infringement is governed by EU law, not national law.[1] The ECJ clarified that an acquirer company may be held liable for private damages caused by a cartel participant even after the cartel participant was subsequently liquidated, provided that the acquirer took over the assets that constituted the business. The ECJ agreed with Advocate General Wahl[2] that the principle of economic continuity should apply not only in public, but also in private antitrust enforcement.

On March 13, 2019, Spotify filed a complaint against Apple with the European Commission, alleging a breach of Article 102 TFEU. The complaint touches on many of the issues surrounding digital platforms that have been a key focus for the Commission in recent years. In particular, there are parallels with the allegations in Google Shopping, that Google abused its platform dominance in general search to benefit its comparison shopping service.

On 11 March 2019, the Competition Appeal Tribunal (the “CAT”) announced that it had received two applications to bring collective proceedings on behalf of all affected commuters, alleging that three U.K. train operators had engaged in exploitative abuses of dominant positions.[1] This is the first time that claimants have filed applications to commence collective proceedings on a standalone basis (i.e., without the benefit of a prior infringement decision that binds the Courts) since the introduction of the collective action procedure on 1 October 2015.

On March 7, 2019, the Commission accepted the commitments offered by Disney, NBCUniversal, Sony Pictures, Warner Bros., and Sky in the pay-TV investigation.[1] The Commission’s concerns related to alleged restrictions on the cross- border sale of pay-TV services in film licensing agreements between the studios and Sky UK.[2] Paramount, also part of the investigation, had already offered commitments to address the Commission’s concerns in April 2016, which the Commission accepted in July 2016.[3]

On March 7, 2019, the Italian Competition Authority (the “ICA”) made legally binding the commitments offered by Monte Titoli S.p.A. (“Monte Titoli”), a subsidiary of Borsa Italiana (which belongs to the London Stock Exchange), active in the post-trading sector.[1] Monte Titoli’s commitments were found to address adequately the ICA’s concerns that the company may have infringed Article 102 TFEU by abusing its dominant position on the securities trading settlement market in order to squeeze competitors’ margins in the custody services market.

On March 5, 2019, the Commission fined car safety equipment suppliers Autoliv and TRW €368 million for breaching Article 101 TFEU by taking part in two infringements consisting of an exchange of commercially sensitive information and illegal coordination in relation to the supply of car seatbelts, airbags, and steering wheels to Volkswagen and BMW.[1]

On March 5, 2019, the French Competition Authority celebrated its 10 years of existence. The President of the Competition Authority listed her priorities for the coming years, which include the retail sector and purchasing alliances, digital economy, “predatory” acquisitions and reflection on ex post control, as well as the labour market and labour collective agreements.

In a decision issued on February 28, 2019, the FCA authorized, subject to conditions, the acquisition of the Marie Brizard Group by Compagnie Financière Européenne de Prises de Participation (Cofepp).[1] Marie Brizard and Cofepp’s businesses overlap on the wine and spirits market. After having ruled out any risk of harm to competition on the on-trade channel (cafés, hotels, restaurants, etc.), the FCA examined the effects of the transaction on the mass retail channel.

On February 26, 2019, the FCO approved RWE AG’s (“RWE”) acquisition of a minority stake of 16.67% in E.ON SE (“E.ON”).[1] The acquisition is part of a complex share and asset swap deal between the two energy companies. Following the share and asset swap, E.ON will focus on the distribution and retail of electricity and gas, whereas RWE will be primarily active in upstream electricity generation and wholesale markets.

On February 25, 2019, the FCO concluded its abuse of dominance investigation against the German National Olympic Committee (Deutscher Olympischer Sportbund, “DOSB”) and the International Olympic Committee (“IOC”) with a commitment decision.[1] The FCO had launched its investigation in 2017, following a complaint by the German Association of the Sporting Goods Industry (Bundesverband der Sportartikel-Industrie).