On October 25, 2022, the Commission published additional guidance on its Leniency Policy in the form of Frequently Asked Questions (“FAQs”) to further encourage companies to seek immunity or leniency from cartel fines.[1]
Advocate General Sides with Commission in its Appeal of General Court’s Overturning of Three/O2 Prohibition
Non-binding opinion finds that General Court erred in applying heightened standard of proof to cases involving unilateral effects in oligopolistic markets.
The Council of State Confirms the Annulment of an ICA Decision on an Abuse of Dominance in the Market for Ticketing Services for Live Pop Music Concerts
On October 24, 2022, the Council of State[1] confirmed on appeal the annulment of a 2020 decision, by which the ICA had imposed a fine on CTS Eventim-TicketOne Group (“TicketOne”) for allegedly abusing its dominant position in the Italian market for the provision of ticketing services for pop music concerts.[2]
General Court Partially Annuls European Commission Decision in Google Android
In September 2022, the General Court partially annulled the European Commission’s 2018 Google Android decision, which fined Google €4.3 billion for abuses of dominance relating to apps it offers for its Android mobile operating system (“OS”).[1] The Court also found that the Commission’s investigation suffered from procedural errors. It reduced the fine by €200 million.
For the first time, the French Competition Authority rejects a compliant on grounds of enforcement priority
On October 20, 2022, for the first time, the French Competition Authority used its newly-acquired ability to reject a claim on the basis of enforcement priority and rejected Culture Presse’s claim in relation to an alleged abuse of a dominant position by La Poste in respect of postal stamps distribution.[1] Since the transposition into French law of the ECN+ Directive[2] and pursuant to the second paragraph of Article L. 462-8 of the French Commercial Code, the Competition Authority no longer has an obligation to investigate, and may now, by way of a reasoned decision, reject a complaint where it is not considered an enforcement priority.
CK Telecoms: Advocate General Kokott’s (Re)-Balancing Of Probabilities Test
On October 20, 2022, Advocate General Kokott issued her opinion on the Commission’s appeal of the General Court’s landmark May 2020 judgment overturning the Commission’s prohibition of the Three/O2 UK mobile telecommunications merger.[1] The Opinion advises the Court of Justice to uphold the Commission’s appeal on all main grounds and refer the case back to the General Court for reconsideration.
The Cour de cassation dismisses Carrefour’s appeal in relation to its follow-on damage claim against Johnson & Johnson
On October 19, 2022, the Cour de cassation dismissed[1] an appeal brought by Carrefour against two decisions of the Paris Court of Appeals, which rejected its follow-on damage claim against Johnson & Johnson Santé Beauté France (“Johnson & Johnson”) in relation to its participation to the home and personal care cartel.[2]
EU Digital Markets Act Published in the EU’s Official Journal
On October 12, 2022, the Digital Markets Act (DMA) was published in the Official Journal of the European Union. This is the last step in the almost two-year long journey since the publication of the Commission’s initial proposal in December 2020.[1]
Towercast: Advocate General Kokott Proposes To Add Article 102 TFEU To the Transactional Toolbox
On October 13, 2022, Advocate General Kokott delivered her opinion on a preliminary reference from the Paris Court of Appeal in the Towercast case, stating that transactions that escape EU and national merger control review are susceptible to review under Article 102 TFEU.[1]
The ICA Ends an Abuse of Dominance Investigation Into Mastercard’s Conduct by Accepting and Making Binding the Company’s Commitments Relating to Contactless Payments
On October 11, 2022, the ICA closed an Article 102 TFEU investigation into Mastercard Europe SA (“Mastercard”)’s conduct by accepting the commitments offered by Mastercard relating to its double-tap mandate for contactless payments with co-badged payment cards (i.e., cards that can be used on more than one payment network) (the “Decision”),[1] which precluded retailers operating point-of-sale (“POS”) terminals from accepting single-tap payments from co-badged cards.