Industries

On December 17, 2020, the Hanover Regional Court ordered the disclosure of the confidential version of an infringement decision of the EC (the “Infringement Decision”).[1] It is the first decision granting access to a confidential version of a previously nondisclosed decision by a competition authority. Other courts have shown a tendency to limit the scope of the disclosure rights.[2]

On December 16, 2020, the General Court partially annulled the Commission’s decision in the International Skating Union’s Eligibility rules case.[1] The General Court upheld the Commission’s finding that the International Skating Union’s (“ISU”) eligibility rules (“Eligibility Rules”), which prescribed severe penalties on participants of third-party events not authorized by the ISU, were in breach of Article 101 TFEU.

On December 15, 2020, the Commission published its proposal for the Digital Markets Act (“DMA”),[1] which would impose a list of  ex  ante  obligations on designated large online platforms that meet certain thresholds. The proposed DMA aims at preventing practices by large online platforms that, according to the Commission, either fall outside or cannot be effectively addressed by the existing EU competition rules. The DMA would represent a far-reaching expansion of the Commission’s regulatory powers in digital markets, and would significantly increase the regulatory burden on the designated companies.

On December 14, 2020, six years after the adoption of the Damages Directive,[1] the Commission published a report[2] analyzing its implementation across Member States.[3] The Damages Directive was introduced to harmonize the procedural rules for antitrust damages actions.

On 11 December 2020, the UK Supreme Court handed down its judgment concerning the standard to be applied when certifying collective proceedings before the Competition Appeal Tribunal (CAT) for breaches of the Competition Act 1998 (the Act). Under the Act, collective proceedings may not be pursued beyond the issue and service of a claim form without the CAT’s certification, in the form of a Collective Proceedings Order (CPO).

On December 9, 2020, the Court of Justice annulled the Commission’s decision that accepted Paramount’s commitments to remove from its licensing agreements with broadcasters any obligation that prevents broadcasters from responding to cross-border requests for pay-TV subscriptions (the “Commitments Decision”).[1] The Court of Justice concluded that the Commitments Decision breached the principle of proportionality because it negated contractual rights of Canal+ and other counterparties to Paramount’s licensing agreements who were not involved in the Commission’s proceedings.

On December 8, 2020, the FCJ overturned a decision of the DCA concerning an increase in cancellation fees for track access charges imposed by Deutsche Bahn AG (“DB”) between 2008 and 2011. The plaintiff demanded the repayment of a partial amount of the cancellation fees paid following a price increase of 150%. The FCJ referred the case back to the DCA.[1]

On 15 October 2020, the Competition and Markets Authority (CMA) revoked a £300,000 penalty it had imposed on JD Sports Fashion plc for breach of an interim enforcement order (IEO) issued in connection with JD Sports’ completed acquisition of Footasylum plc. The penalty was withdrawn “[i]n light of issues raised on appeal.” This is the first time that a CMA procedural fine has been revoked or overturned on appeal. On 19 and 20 October 2020, the Competition Appeal Tribunal (CAT) heard Facebook’s appeal against the CMA’s refusal to grant a derogation from an IEO issued in connection with Facebook’s completed acquisition of GIPHY, Inc. This article considers potential implications of these cases for future UK mergers.