On 20 November 2023, the Digital Markets, Competition, and Consumers Bill (DMCC) cleared the report stage and an expedited third reading in the House of Commons, at which a series of significant amendments were passed.
FCO Declares OpenAI/Microsoft Cooperation (Currently) Not Subject To Merger Control
On November 15, 2023, the German Federal Cartel Office (“FCO”) concluded that Microsoft’s investments in and cooperation with OpenAI, Inc. (“OpenAI”) do not constitute a notifiable merger under German law. [1]
UK CMA Publishes Green Agreements Guidance
On 12 October 2023, the UK’s Competition and Markets Authority (CMA) published new Green Agreements Guidance on the application of the Chapter I prohibition in the Competition Act 1998 to environmental sustainability agreements (the Guidance).
European Court of Justice Confirms Altice’s Gun-Jumping Violation
On November 9, 2023, the European Court of Justice dismissed, on most grounds, [1] Altice’s appeal against the General Court’s judgment[2] upholding the European Commission’s decision, in 2018,[3] to fine Altice €124.5 million for gun-jumping violations in connection with its acquisition of PT Portugal. The Court of Justice confirmed that Altice breached the EU Merger Regulation’s notification and standstill obligations by acquiring and exercising decisive influence over PT Portugal prior to obtaining Commission approval. The Commission had fined Altice €62.25 million for each of the two infringements. The Court of Justice reduced one of the fines by about €10 million on account of the Commission’s failure to properly state reasons, but the judgment supports the trend toward strict enforcement of EU rules against early implementation of M&A transactions.[4]
Commission v. Ireland and Others (Case C-465/20 P): Opinion of Advocate General Pitruzzella
On November 9, 2023, Advocate General Pitruzzella delivered his Opinion,[1] proposing that the Court of Justice uphold the appeal brought by the European Commission (“Commission”)[2] against the General Court judgment of July 15, 2020,[3] which annulled the Commission decision of August 30, 2016, finding that the Republic of Ireland (“Ireland”) had granted €13 billion in undue tax benefits to Apple Inc (“Apple”).[4] The Commission had found that Ireland granted a selective advantage to Apple through two individual tax decisions (“tax rulings”[5]) adopted in 1991 and 2007, addressed to the Irish-based subsidiaries, Apple Sales International (“ASI”), and Apple Operations Europe (“AOE”) (together, “the Irish branches”). As AG Pitruzzella pointed out, this case is part of a “series of somewhat extensive cases concerning the application of Article 107(1) TFEU to tax rulings.”[6]
Key Competition Law Takeaways From the 2023 G7 Joint Competition Enforcers and Policy Makers Summit
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”).
EDP – Energias de Portugal and Others (Case C-331/21): Court of Justice Clarifies the Treatment of Non-compete Clauses Between Potential Competitors Under Article 101 TFEU
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.
Commission Gets Active Again In The Pharmaceutical Sector: First-Ever Cartel Decision In Relation To An Active Pharmaceutical Ingredient
On October 19, 2023, the Commission imposed fines totalling €13.4 million on five pharmaceutical companies (Alkaloids of Australia, Alkaloids Corporation, Boehringer, Linnea, and Transo-Pharm) for their participation in a cartel in relation to an active pharmaceutical ingredient.[1] This is the Commission’s first-ever cartel decision in the pharmaceutical sector, adding to the Commission’s extensive enforcement action against pharmaceutical companies.
The French Cour de cassation dismisses L’Oréal’s action against the 189 million euro fine imposed by the French Competition Authority in 2014 for alleged price fixing
On October 18, 2023, the French Cour de cassation upheld the Paris Court of Appeals’ ruling finding that the French Competition Authority (“FCA”) had rightly calculated the amount of the fine imposed on L’Oréal in 2014 for its alleged involvement in a cartel in the personal care products industry.[1] The French Cour de cassation confirmed that the sales of a subsidiary that did not itself participate in the infringement can be included in the calculation of the fine if these sales have been affected by the infringement sanctioned.