Industries

Over the past several months, there have been a number of statements by politicians and Member State governments regarding the reform of EU competition law. Much of this debate is fundamentally linked to how authorities should define the relevant product and geographic markets that guide their antitrust and merger investigations.

Decree n°2019-1247 of November 28, 2019, published in the Official Journal of the French Republic on November 29, 2019 (the “Decree”), provides the procedural framework for the FCA’s new power to access telephone communications data for the purpose of antitrust investigations under Article L. 450-3-3 of the French Commercial Code. This framework was introduced by the Pacte Law [1] and allows the FCA to request access to technical information regarding the identity of a caller, the telecommunication terminals used, the data, time, and duration of each call, and the phone numbers called. It will be operational as soon as the Data Request Supervisor (“contrôleur des demandes de données de connexion”) is appointed (the Supervisor will be appointed among the judges of the French Administrative or Civil Supreme Court).[2]

On November 26, 2020, the Commission fined Teva and Cephalon a total of €60.5 million for entering into a pay-for-delay agreement in relation to a sleep disorder drug. This arrangement is alleged to have helped maintain high prices for several years, to the detriment of patients and healthcare systems.[1]

On November 25, 2020, after an in-depth investigation, the FCO approved the acquisition by Mann Mobilia Beteiligungs GmbH (part of the XXXLutz Group) of 50% of the shares in Möbel Management Holding GmbH & Co. KG and Roller GmbH & Co. KG (part of the Tessner Group), subject to the divestiture of 23 furniture outlets.[1] The FCO’s clearance only relates to the sales side of the transaction, i.e., the relationship between furniture retailers and consumers, whereas on November 30, 2020, the European Commission unconditionally cleared the transaction with respect to the procurement side, i.e., the relationship between furniture retailers and manufacturers.[2]

On November 25, 2020, the FCA chose to depart from its long-standing decisional practice on intra- group bidding.[1] Following the European Court of Justice’s ruling in Ecoservice projektai,[2] the FCA concluded that intra-group bids to tenders no longer fall within the ambit of competition law.

On November 20, 2020, at the request of Sisvel International Group (“Sisvel”), the Federal Court of Justice (“FCJ”) granted a preliminary injunction against Chinese mobile phone manufacturer Haier Corporation Group (“Haier”).[1] The injunction is another victory for Sisvel in its patent disputes with Haier following a preliminary injunction issued in May 2020.[2] The FCJ used the recent decision as an opportunity to further elaborate on the obligations of patent holders and potential patentees under the Huawei/ZTE jurisprudence of the Court of Justice of the European Union (“CJEU”).[3]

On November 18, 2020, the General Court dismissed an appeal by AB Lietuvos geležinkeliai (“Lithuanian Railways”) against a 2017 Commission decision which found that the company had abused its dominant position on the Lithuanian rail freight market by removing a stretch of track connecting Latvia and Lithuania (the “short route”). The Commission found that the conduct prevented one of Lithuanian Railways’ major customers, the Polish stated-owned oil company AB Orlen Lietuva (“Orlen”), from switching transportation services to rival Latvian Railways.[1] The Commission and Lithuanian Railways discussed potential remedies, but failed to reach an agreement. The Commission therefore imposed a fine of €28 million. The General Court partially upheld the Commission decision, reducing the fine from €28 million to €20 million due to the limited territorial scope of the infringement.[2]

On 1 September 2020, JD Sports Fashion and Pentland Group Limited filed an appeal against a CMA decision of 29 July 2020 to impose a penalty of £300,000 on the parties for failing to comply with the requirements of the CMA’s initial enforcement order issued in the context of the completed acquisition by JD Sports of Footasylum plc.