On October 10, 2022, the Commission sent a Statement of Objections (“SO”) to Teva, maintaining that the company abused its alleged dominant position through patent misuse and disparagement practices.[1]
Antitrust Review Episode 4: In Conversation With Professor Eleanor M. Fox
In the fourth episode of Cleary Gottlieb’s Antitrust Review podcast, host Nick Levy interviews Professor Eleanor M. Fox, who for
International for abusive restrictions on online sales
On October 6, 2022, the French Competition Authority (the “FCA”) imposed a €81 million fine on Essilor International SAS (“Essilor”) for having engaged in discriminatory trading practices aimed at hindering the development of e-commerce for optical lenses in France between April 2009 and December 2020.[1] Essilor’s parent company, EssilorLuxottica, was fined €15.4 million jointly and severally with its subsidiary and announced its intention to appeal the decision.[2]
The Commission’s Revised Informal Guidance Notice: In Search of A Win-Win?
On October 3, 2022, the Commission adopted a Revised Informal Guidance Notice on the application of Articles 101 and 102 TFEU to novel or unresolved competition law questions.[1] The Revised Informal Guidance Notice gives the Commission more flexibility in issuing informal advice compared to the 2004 guidance.[2]
The TAR Lazio Overturns ICA Decision to Fine Amazon and Apple for Allegedly Restructuring Competition in the Sales of Apple and Beats Products on Amazon Marketplace
On October 3, 2022, the Regional Administrative Court for Latium (the “TAR Lazio”) annulled the decision of the Italian Competition Authority (the “ICA”) of November 16, 2021 (the “ICA Decision”),[1] by which a fine of €134.5 million was imposed on Apple Inc. and certain of its subsidiaries (“Apple”) and a fine of €68.7 million on Amazon.com Inc. and certain of its subsidiaries (“Amazon”; together with Apple, the “Parties”).[2] The ICA Decision had found that the Parties infringed Article 101(1) (b) and (d) TFEU by restricting competition by certain resellers of Apple products, including those of the Apple-owned brand Beats, which operated on the online marketplace of Amazon (the “Amazon Marketplace”). The ICA found Amazon Marketplace to be a leading online marketplace in Italy, for consumer electronics products.[3]
New Toolkit for Intervention Under the Draft Competition Enforcement Act
On September 26, 2022, the Federal Ministry for Economic Affairs and Climate Action published a draft of the Competition Enforcement Act which will amend the German Act Against Restraints of Competition (“ARC”) for the 11th time (“Draft 11th Amendment”).[1] The aim of the Draft 11th Amendment is to strengthen the Federal Cartel Office’s (“FCO”) enforcement powers beyond the existing enforcement of antitrust and abuse of dominance violations.
Council of State Annuls ICA Decision on Alleged Bid-Rigging in Open Tender Procedures for the Provision of Private Security Services in Certain Italian Regions
On September 30, 2022, the Council of State upheld the appeals submitted by Sicuritalia S.p.A., Lomafin Sicuritalia Group Holding S.p.A., Italpol Vigilanza S.r.l. and Mc Holding S.r.l. (the “Appellants”),[1] and annulled a decision of the Italian Competition Authority (“ICA”) on alleged bid-rigging in open tender procedures for the provision of private security services in certain Italian regions.[2]
The FCO Issues Warning To Deutsche Bahn For Possible Impediment Of Mobility Platforms
On April 20, 2022, the German Federal Cartel Office (“FCO”) issued a statement of objections against Deutsche Bahn AG (“DB”) taking the preliminary view that certain practices and contractual clauses of DB in relation to mobility platforms constitute an abuse of market power.
FCO Allows Cooperation Between Sugar Producers In Times Of Crisis
The German Federal Cartel Office (“FCO”) has endorsed a “one-time temporary cooperation project” of Germany-based sugar manufacturers Nordzucker, Südzucker, Pfeifer & Langen and Consun Beet to coordinate capacities for the processing of sugar beets from September 2022 to March 2023 in light of the dawning gas supply shortage.[1]
Advocate General Rantos Indicates That Competition Authorities Can Take Into Account Compliance With the GDPR in Their Assessment of Competition Law Infringements
On September 20, 2022, Advocate General Rantos delivered his opinion on the Higher Regional Court of Düsseldorf (the “Düsseldorf Court”)’s request for a preliminary ruling concerning the decision of the Bundeskartellamt (German Federal Cartel Office, “FCO”) which had found that Meta Platforms (“Meta”, formerly Facebook Inc.) abused its dominant position in relation to the collection, processing, aggregation and use of personal data of its users in 2019.[1] The Advocate General concluded that a competition authority may examine, as an incidental question, the compliance of the practices under investigation with the General Data Protection Regulation (“GDPR”) rules, while informing and, where appropriate, consulting the competent supervisory authority on the basis of the GDPR.[2]