Industries

On December 9, 2022, the Commission launched a public consultation on its draft Implementing Regulation for the Digital Markets Act (“DMA”).[1] The draft DMA Implementing Regulation, with its two annexes, governs the notification process for gatekeepers, the submission to and assessment of information by the Commission, and access to file. The consultation ran until January 9, 2023 and 27 stakeholders submitted their observations. The Commission will now review the feedback it received and plans on adopting the DMA Implementing Regulation in the first quarter of 2023.

On December 8, 2022, the Court of Justice delivered its judgment in the Orde van Vlaamse Balies and Others v. Vlaamse Regering case[1] following a request for a preliminary ruling from the Belgian Constitutional Court on the validity of a Flemish decree designed to implement an EU directive discouraging aggressive tax planning arrangements. The judgment is noteworthy for broadening the scope of the legal professional privilege applicable in competition law cases.

On December 7, 2022, the French Supreme Court (“Cour de cassation”) upheld the Paris Court of Appeal’s judgment dismissing Concurrence’s damage claim brought against Samsung Electronics France (“Samsung”).[1] Concurrence claimed that Samsung had abruptly terminated their long- standing commercial relationship.

In the third episode of a three-part series on U.S. antitrust enforcement, host Nick Levy interviews Cleary Gottlieb colleagues Bruce Hoffman and Leah Brannon about the U.S. enforcement environment for Big Tech, the agencies’ application of Section 2 of the Sherman Act, and the prospects for legislative change.

On December 6, 2022, the Frankfurt am Main Court of Appeal[1] dismissed an action to declare the existence of contribution claims against other cartel members.  The action was filed in an attempt to suspend the limitation periods of upfront contribution claims that arose at the moment when the purchasers of the cartel suffered harm.  

On November 30, 2022, the German Federal Cartel Office (“FCO”) and the German Federal Network Agency published their joint Energy Monitoring Report 2022.[1]  The report focuses on conditions in the German electricity and gas markets in 2021 and also takes a look at developments in early 2022 which were marked by heavy disruptions in the energy markets following Russia’s war against Ukraine. 

On November 30, 2022, the Italian Competition Authority (the “ICA”) closed the proceedings initiated on December 1, 2020 against Bancomat S.p.A. (“Bancomat”). Bancomat is an Italian company that operates the Bancomat and PagoBancomat circuits, which can be used to make withdrawals at Automated Teller Machines (“ATMs”) as well as cashless payments through so-called Points of Sale. In its decision, the ICA found that Bancomat’s proposed new remuneration model for circular withdrawal (the “Proposal”), brought to attention of the ICA by Bancomat itself on October 22, 2022, infringed Article 101 of the Treaty on the Functioning of the European Union (the “TFEU”).[1]

On November 29, 2022, the German Federal Court of Justice (“FCJ”) overturned[1] a decision by the Frankfurt am Main Court of Appeal dismissing a damages action by the insolvent drugstore chain Schlecker.[2]  The FCJ held that, in the case of an anticompetitive exchange of price-related information, there is a factual presumption of causal damage.  The matter has been sent back to the Frankfurt am Main Court of Appeal for a new decision because, in the opinion of the FCJ, it had attached too light weight to a factual presumption. 

On 10 November 2022, the European Court of Justice (CJEU) issued a preliminary ruling[1] on the interpretation of the disclosure obligation under the EU directive that harmonised national rules governing actions for damages for breaches of competition law in EU member states and the UK (the Damages Directive).[2]